Australia: Transport & Logistics News - March 2017: part 6

Barker v Commonwealth of Australia [2016] QSC 310

The plaintiff, Mr Barker, was a passenger on a flight from Port Moresby to Brisbane in November 2011 who had been drinking heavily before and during the flight. Cabin crew had requested that he cease drinking during the flight. Upon arriving at Brisbane airport, Mr Barker's behaviour was reported to ground staff. Subsequently, a member of the Australian Federal Police (AFP), two customs officers and two protective services officers (PSOs) attended to investigate. Mr Barker was directed to remain on the tarmac while the investigation took place.

Accounts provided by witnesses suggested that Mr Barker acted in a menacing and threatening manner towards the officers and airline staff while waiting on the tarmac. He repeatedly abused witnesses and made threats towards them and their family members, and was observed to be acting aggressively and clenching his fists.

The AFP officer decided to arrest Mr Barker. With the assistance of one of the PSOs, he took hold of Mr Barker's arms. Mr Barker resisted, trying to break free of the officers' grip and began yelling and screaming. He was then was taken to the ground by the officers and handcuffed behind his back.

Mr Barker alleged that he suffered injury to his left leg and ankle during the arrest. He claimed damages for the torts of false imprisonment, assault and battery, and negligence arguing that the Commonwealth of Australia was vicariously liable for the actions of the PSOs and the AFP officer.

Mr Barker did not challenge the validity of his arrest, but he claimed that he was falsely imprisoned in the period between exiting the plane and his arrest where he was asked to remain on the tarmac by the PSO. In support of his claim in assault and battery, he argued that the force used by the officers in conducting the arrest was unreasonable and unnecessary and therefore unauthorised by section 14B of the Australian Federal Police Act 1979 (Cth).

In his evidence, Mr Barker disputed that the was drunk or heavily affected by alcohol. Although he accepted he had used bad language, he denied attempting to threaten or physically intimidate witnesses and disputed the allegations that he resisted arrest.

Referring to Mr Barker's medical records, Jackson J noted that on a number of occasions, clinical notes reported that Mr Barker was unable to recall the mechanism of his injury due to being affected by alcohol. Rejecting Mr Barker's version of events, His Honour accepted that the plaintiff was heavily affected by alcohol at the time of his arrest and that he had a very limited recollection of his arrest.

His Honour went on to find that there was no serious case of false imprisonment on the facts as Mr Barker was merely asked to wait while the AFP officer investigated the complaint. Mr Barker remained on the tarmac voluntarily and did not ask whether he was free to leave or insist on being able to leave. A mere direction to wait on the tarmac did not amount to false imprisonment. His Honour found it unnecessary to decide whether the defendant was entitled to rely on section 84(a) of the Aviation Transport Security Act 2004 as authorising the AFP officer to direct the plaintiff to stop without undertaking a search of the plaintiff, or whether the AFP officer reasonably believed that it was necessary to stop the plaintiff for the purposes of safeguarding against unlawful interference with aviation in accordance with the meaning of that term as defined in section 10 of that Act.

In relation to the claim of assault and battery, His Honour found that the force used by the officers in arresting Mr Barker was not unreasonable or unnecessary in circumstances where Mr Barker had resisted arrest and sought to break free. He accepted that Mr Barker had been abusive, made threatening comments and displayed signs of rage in the lead up to his arrest.

Relying on the cases of Dowse v New South Wales [2012] NSWCA 337 and State of Victoria v Richards [2010] VSCA 113, His Honour also found that the defendant owed no duty of care to the plaintiff in the circumstances and dismissed the claim in negligence.

Accordingly, Jackson J ordered that the plaintiff's claim be dismissed and ordered costs in favour of the defendant.

Bellamy v Civil Aviation Safety Authority [2016] AATA 956

The applicant, Mr Bellamy, was the holder of a Private Pilot Licence - Aeroplane category (PPL) issued to him in August 2002. Mr Bellamy also owned a McCulloch J2 gyroplane (Gyroplane). On 16 July 2010, Mr Bellamy was conducting ground runs at Bendigo airport when he lost control of the Gyroplane, causing its rotor to strike the runway and destroy the aircraft.

CASA investigated the incident and subsequently initiated proceedings in the Bendigo Magistrates' Court against Mr Bellamy in relation to charges of reckless operation of an aircraft under section 20A of the Civil Aviation Act 1988 (Cth). Mr Bellamy was also charged with a breach of section 145.1 of the Criminal Code Act 1995 (Cth) for dishonestly providing a false document to a public official. He was found guilty of the false document offence but not guilty of reckless operation of an aircraft offence. CASA then cancelled Mr Bellamy's PPL on the basis that he was not a fit and proper person to hold it.

Mr Bellamy sought to have CASA's decision to cancel his PPL reviewed by the Administrative Appeals Tribunal (AAT). The AAT noted that although the Gyroplane was registered, it had not been issued with a certificate of airworthiness or a maintenance release as required under the Civil Aviation Regulations 1998 (Cth) (CAR), partly because he was unable to gain approval from CASA to various modifications he had made to the Gyroplane. Although Mr Bellamy held a degree in aircraft engineering, he did not hold the relevant licence and was therefore not permitted to perform maintenance on the Gyroplane under regulation 42ZC of the CAR.

Shortly prior to the accident, Mr Bellamy had filled out a maintenance release form which he was not authorised to issue because he lacked the relevant licence. The AAT accepted that parts of this document were "clearly misleading" and noted that the Magistrates' Court found Mr Bellamy guilty of knowingly using a false document with the intention of dishonestly inducing a person in his capacity as a public official to accept it as genuine and if so accepted, to dishonestly influence the exercise of a function of a public official contrary to subsection 145.1 (1) of the Criminal Code Act. However, they found that Mr Bellamy had not blatantly disregarded the statutory provisions but merely misunderstood them. In fact, he was not actually required to obtain a maintenance release at all for the purposes of ground operations under section 29 of the Civil Aviation Act.

In cancelling Mr Bellamy's licence, the AAT also noted that CASA had taken into account Mr Bellamy's charge of reckless operation of an aircraft despite the fact that the Magistrates' Court had found him not guilty of that offence. Referring to section 20A(2) of the Civil Aviation Act, the AAT stated that CASA's reliance on this section was incorrect as a matter of law because the section could only be enlivened if the aircraft was operated in a manner which endangered "another person" not including the operator of the aircraft. The Senior Member considered CASA's reliance on this charge to be inappropriate in circumstances where it had not been upheld by the Magistrate.

The AAT then referred to the interpretation of the expression of "fit and proper" as set out in the High Court decision of Australian Broadcasting Tribunal v Bond [1990] HCA 33 and stated that the term takes its meaning from the context in which it is applied. In this case, the activity which CASA should have been concerned with was Mr Bellamy's "operation of a fixed wing aeroplane while exercising the privileges of his PPL".

Senior Member Fice found that CASA had failed to demonstrate that Mr Bellamy's conduct in restoring and testing the Gyroplane would justify a cancellation of his fixed wing PPL, because there was nothing in his conduct which would suggest that he would not be more careful to follow legislative provisions regarding the operation of fixed wing aircraft.

The AAT set aside the decision to cancel Mr Bellamy's licence as there was no sound basis upon which CASA could conclude that he was not a fit and proper person to hold a PPL. A key factor in the AAT's decision was that the conduct which CASA relied on in cancelling Mr Bellamy's PPL all related to his operation of the Gyroplane rather than fixed wing aeroplanes to which the licence related. Further, it was the AAT's opinion that the regulatory material applying to Mr Bellamy's situation was not completely clear, and although Mr Bellamy had misunderstood them, he had taken some considerable effort in attempting to comply with the regulatory regime.

ROAD

Heavy Vehicle National Law

The National Transport Commission has recently noted in its National Transport Reform Implementation Monitoring Report that progress in the 2015/16 year has included all participating jurisdictions (save for WA and Northern Territory) having now adopted the Heavy Vehicle National Law.

Dangerous Goods Code

The Australian Code for the Transport of Dangerous Goods by Road & Rail, Edition 7.5 takes effect from 1 March 2017.

RAIL

Western Australia has passed the Rail Safety National Law and Queensland is in the course of implementation in that state.

UNFAIR CONTRACT TERMS AND THE AUSTRALIAN CONSUMER LAW

The reforms to the Australian Consumer Law relating to unfair terms in contracts with small businesses have now been in force since 12 November 2016. In recent times, many logistics operators, customs brokers, freight forwarders and others in the transport logistics chain have undertaken the process of having their standard terms reviewed to identify whether they may fall foul of the new provisions. There are many standard clauses which may be regarded as "unfair", including clauses which exclude liability in all circumstances and which unreasonably reduce the contractual timebar from six years to say nine months.

Some small business customers are already relying on the new provisions when responding to attempts, for example, by logistics companies, to defend liability for damage to goods on the basis of their standard terms. As far as we are aware, there have not yet been any reported decisions in Australia regarding what may or may not be considered an "unfair" term for the purposes of the new provisions. However, it is only a matter of time, noting that courts will look to each set of terms, and the circumstances of their incorporation, on a case-by-case basis.

For more detail regarding the reforms, we recommend that you review Andrew Probert's detailed bulletin of 22 January 2016 entitled Unfair contract terms: repercussions for the transport sector. If industry participants with standard terms have not yet had them reviewed, a lawyer is able to assist.

CONFERENCES

The Comité Maritime International (CMI) will be holding its annual Assembly meeting together with a half-day seminar arranged by the Italian Maritime Law Association on 8 September 2017 in Genoa.

The Aviation Law Association of Australia and New Zealand (ALAANZ) will hold its annual conference between 3-5 May 2017 in Auckland, New Zealand.

The Maritime Law Association of Australia and New Zealand (MLAANZ) will hold its annual conference between 4-6 October 2017 in Melbourne.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.