Lauschet v Malaysian Airline System Berhad (No 2) [2018] NSWSC 821

Lauschet v Malaysian Airline System Berhad (No 2) [2018] NSWSC 821

The defendant failed to establish oppression because its evidence was confined to information and belief without adequate foundation, while the Dutch aviation authority timeline provided a basis for apprehending that documents concerning warnings and prior shoot downs over eastern Ukraine were relevant to the issue whether the crash damage was due to the carrier's negligence or other wrongful act or omission. Subject to agreed narrowing of subpoena categories, production should be required and the application to set aside the subpoena should be dismissed.

Jurisdiction
Australia
Judgment Date
24 May 2018
Procedural Posture
Claim for Damages Under the Montreal Convention Arising From Flight MH17 Air Crash / Defendant's Notice of Motion to Set Aside Subpoena in Whole or in Part
Outcome
Application to have subpoena set aside dismissed
Legal Topics
['subpoena' 'oppression' 'montreal Convention Art 21' 'flight Mh17' 'negligence or Other Wrongful Act or Omission of Carrier' 'relevance to Fact in Issue']
['practice and Procedure' 'aviation Law' 'international Carriage by Air' 'evidence'] ['subpoena' 'oppression' 'montreal Convention Art 21' 'flight Mh17' 'negligence or Other Wrongful Act or Omission of Carrier' 'relevance to Fact in Issue']

Case Brief

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Procedural Posture

Claim for Damages Under the Montreal Convention Arising From Flight MH17 Air Crash / Defendant's Notice of Motion to Set Aside Subpoena in Whole or in Part

Legal Issues

  1. 1 ['Whether the subpoena should be set aside in whole or in part on the ground that compliance would be oppressive.' 'Whether the documents sought by the subpoena were relevant to a fact in issue in the proceedings.' "Whether evidence based only on information and belief, without specifying the informant's role or source of knowledge, established oppression." 'Whether the subpoena should be narrowed in particular categories before production was required.']

Ratio Decidendi

The defendant failed to establish oppression because its evidence was confined to information and belief without adequate foundation, while the Dutch aviation authority timeline provided a basis for apprehending that documents concerning warnings and prior shoot downs over eastern Ukraine were relevant to the issue whether the crash damage was due to the carrier's negligence or other wrongful act or omission. Subject to agreed narrowing of subpoena categories, production should be required and the application to set aside the subpoena should be dismissed.

Court Disposition

Application to have subpoena set aside dismissed

Orders

  • ['With agreed amendments to the subpoena, production is required.' "The defendant's application is otherwise dismissed." 'Category 17 in the subpoena was not pressed.' 'Category 18 is allowed as narrowed to documents recording training given to operating pilots as to the appropriate response to notifications of the...