FEDERAL COURT OF AUSTRALIA

Dyczynski v Gibson [2020] FCAFC 120

ORDERS

THE COURT ORDERS THAT:

1.    To the extent that the appeal concerns the orders to approve the settlement and dismiss the proceeding made by the primary judge on 26 June 2019, the time for filing the appeal be extended such that the appeal is made within time.

2.    Leave be granted to the Appellants to file a further amended notice of appeal within seven days, reflecting the Remaining Group Members Ground set out at [142] and [318] of the reasons for judgment.

3.    Leave be granted to the Second Respondent to file a notice of contention within seven days, reflecting ground three in the draft cross appeal.

4.    Leave otherwise be refused to the Second Respondent to extend time to file and rely upon the notice of cross appeal and the notice of contention.

5.    The appeal be allowed.

6.    The declaration made by the primary judge on 28 August 2019 be set aside.

7.    To the extent necessary, the Appellants be granted leave to withdraw the concession that the Court lacks jurisdiction to hear and decide their claim, made on behalf of the Applicant below (the First Respondent in the appeal) in submissions filed 5 July 2018.

8.    Orders 1 and 2 made by the primary judge on 26 June 2019 be set aside and in lieu thereof order:

(a)    Pursuant to s 33V of the Federal Court of Australia Act 1976 (Cth) (Act), the Court approves the settlement of this proceeding (Proceeding) on the terms set out in the release between the parties dated 5 June 2019 (Release) appearing at Confidential Annexure MH12 to the affidavit of Michael Hyland affirmed on 13 June 2019; and

(b)    Pursuant to s 33ZB of the Act, the above s 33V order binds and affects the claims of all registered group members in the Proceeding other than Dr Jerzy Dyczynski and Ms Angela Rudhart-Dyczynski and the legal personal representatives of Mr Wilhelmus Theodorus Maria Grootscholten (deceased) and Ms Olga Ioppa (deceased), whose claims were not the subject of the Release.

9.    The Proceeding be adjourned to a case management hearing approximately three months from the date of these orders.

10.    The solicitors for the Appellants provide the legal personal representatives of Mr Grootscholten and Ms Ioppa with a copy of these reasons forthwith. The legal personal representatives of Mr Grootscholten and/or Ms Ioppa have liberty to apply to vary these orders within one month of receiving notice of the orders. Any such application shall be made by notifying the associate to the presiding judge of the terms of the variation to the orders that is sought, and providing a copy of such notification to the solicitors for the Second Respondent.

11.    If the Appellants seek to pursue their claim against the Second Respondent then, on or before 9 October 2020, the Appellants must file points of claim in relation to their claim against the Second Respondent, identifying the relief they seek against the Second Respondent and the asserted basis for that relief.

12.    If points of claim are filed by the Appellants then, with effect from 9 October 2020:

(a)    Dr Dyczynski and Ms Rudhart-Dyczynski be substituted as applicants in the Proceeding;

(b)    upon substitution, provided the legal personal representatives of Mr Grootscholten and Ms Ioppa do not notify the Appellants that they oppose such an order, the Proceeding no longer continue under Part IVA of the Federal Court of Australia Act 1976 (Cth);

(c)    the Proceeding be listed for mediation by a Registrar on a date after 9 October 2020. LHD Lawyers is directed to attend and participate in the mediation as a party. The Registrar is authorised to give directions as to the conduct of the mediation including as to the attendance of any persons the Registrar considers necessary for an effective mediation, and the provision of appropriate documents and/or position papers. In the event the matter does not settle, at the conclusion of the mediation and if appropriate, the Registrar conduct a case management conference to consider the best means of bringing the Proceeding to hearing and of conducting the hearing, at which conference the Registrar may give further directions; and

(d)    the Proceeding be allocated to a judge other than the primary judge by the National Operations Registrar, in the usual way.

13.    If points of claim are not filed by the Appellants, and the legal personal representatives of Mr Grootscholten and/or Ms Ioppa do not notify the Second Respondent that they oppose an order dismissing the Proceeding, then the Proceeding be dismissed.

14.    If the legal personal representatives of Mr Grootscholten and/or Ms Ioppa notify the Appellants that they oppose an order that the Proceeding no longer continue under Part IVA of the Act or that they oppose an order dismissing the Proceeding, then the Proceeding be allocated to a judge other than the primary judge by the National Operations Registrar.

15.    Subject to the terms of any further order made in accordance with these orders by which LHD Lawyers is ordered to pay part or all of the Appellants’ costs, the Second Respondent pay the Appellants’ costs of and associated with the interlocutory application dated 7 August 2019 and the appeal on a party/party basis.

16.    LHD Lawyers show cause as to why they should not be ordered to pay the Appellants’ costs of and associated with the interlocutory application dated 7 August 2019 and the appeal, either on a party/party or an indemnity basis. In this regard:

(a)    LHD Lawyers have leave to file any further affidavits, and written submissions limited to 10 pages, upon which they wish to rely on the question of costs within 21 days;

(b)    in the event that LHD Lawyers seek an order that a proportion of those costs be payable by any counsel engaged for the applicant below, then counsel have leave to file any affidavit, and written submissions limited to 10 pages, upon which they wish to rely, within a further 21 days; and

(c)    the Appellants and the Second Respondent have leave to file short responsive submissions (of no more than five pages) within 10 days thereafter.

If LHD Lawyers or counsel do not seek to be heard orally in relation to costs, the issue of whether they should be ordered to pay costs and on what basis shall be determined on the papers.

17.    Any costs payable pursuant to these orders if not agreed are to be assessed on a lump sum basis in an amount and by a date to be determined by a Registrar and paid pursuant to rule 4.19(3) of the Federal Court Rules directly to the lawyers who appeared pro bono for the Appellants, save for the amount of any disbursements incurred personally and allowed in the assessment which shall be paid directly to the Appellants.

18.    If it is necessary to assess costs:

(a)    the Appellants may file and serve an affidavit constituting a Costs Summary in accordance with the Court’s Cost Practice Note (GPN-COSTS);

(b)    within 14 days of service of the Costs Summary the party liable to pay the costs under these orders or any further orders do file and serve any costs proposal in accordance with GPN-COSTS; and

(c)    if either party thereafter requests a determination of an appropriate lump sum figure then the matter shall be referred to a Registrar for determination of the lump sum on the papers.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MURPHY AND COLVIN JJ:

1    The appellants in this heart-breaking case, Dr Jerzy Dyczynski and Ms Angela Rudhart-Dyczynski, are husband and wife. In 2014, their only child, Fatima Dyczynski, a graduate Aerospace Engineer and budding Space Systems entrepreneur, was completing a Master’s degree in Space Systems Engineering at Delft University of Technology in the Netherlands. Dr Dyczynski booked a return flight for Fatima to travel from Amsterdam to Perth, Western Australia for the purpose of making an application for Australian permanent residency. Theirs was plainly a loving family and the appellants eagerly awaited their 25 year old daughter’s arrival. On 17 July 2014 Fatima boarded Malaysian Airlines flight MH17 (MH17) to travel to Australia. Tragically, the plane was shot down over the Ukraine killing all 283 passengers and crew.

2    The appeal concerns orders made in a representative proceeding or class action under Part IVA of the Federal Court of Australia Act 1976 (Cth) (the Act) brought by Ms Cassandra Gibson as representative applicant, the first respondent in this proceeding, against Malaysian Airline System Berhad (Malaysian Airlines), the second respondent in the appeal. Ms Gibson sought damages under the Convention for the Unification of Certain Rules for International Carriage by Air (Montréal, 28 May 1999) (Montréal Convention or the Convention) on her own behalf and on behalf of certain other legal representatives of passengers who died on MH17 (group or class members).

3    Despite the complexity of issues raised and the extent of the affidavit material filed, the appeal boils down to understanding the consequences that flow from three matters:

(a)    First, the same lawyers acted for both the representative applicant in the class action and the appellants in their individual claim and those lawyers failed to comply with their professional obligations;

(b)    Second, in the conduct of the class action, both parties failed to conform to a proper understanding of the limitations on the authority of the representative applicant to deal with the individual issues relating to class members’ claim; and

(c)    Third, the conduct of the class action by the parties failed to reflect a proper understanding of the difference between two distinct questions: whether the appellants make a claim which falls within the class description and are therefore a class member (on the one hand) and whether that claim is ultimately found to have merit such that the appellants are entitled to relief (on the other hand).

4    In these reasons, it is necessary to detail the failures of the appellants’ legal representatives in the conduct of the class action because it explains much of why the proceeding went so badly off the rails and why the appeal must be allowed. The solicitors for the first respondent were directed to file any affidavit material upon which they wished to rely in the appeal and they took up that opportunity. During the course of argument counsel who appeared for the first respondent in the appeal and below were also given the opportunity to address the concerns addressed in these reasons.

5    We have had the benefit of reading the draft reasons of Lee J and, as will become apparent, we are in substantial agreement.

Summary

6    As our reasons are lengthy, we provide the following summary of the key facts and the result, but reference should be made to the detailed reasoning which sets out the basis for our decision as to why the appeal should be allowed and relief of the kind sought by the appellants granted.

7    In January 2016 the appellants entered into a written retainer agreement with Sydney firm, LHD Lawyers (LHD), pursuant to which LHD accepted instructions to act on behalf of the appellants in relation to Fatima’s death, including to commence a claim under the Montréal Convention in a court of competent jurisdiction. Article 33 of the Convention provides various categories of jurisdiction such that, depending on the circumstances, courts in different countries may have jurisdiction to hear and determine a claim under the Convention.

8    On 1 July 2016 LHD commenced a class action in this Court, with Ms Gibson as the representative applicant. LHD advised the appellants that they met the class description in the statement of claim as filed and were therefore class members and could pursue their individual claim through that vehicle.

9    On 9 December 2016 the primary judge struck out the class description in the statement of claim in the class action but gave leave to replead it. His Honour subsequently granted leave for an amended class description with effect from 2 May 2017, and the class action continued on foot.

10    LHD continued to advise the appellants that they were class members and could therefore pursue their claim through the vehicle of the class action. On 16 November 2017 Mr John Rowe, a barrister instructed by LHD, conferred with the appellants in relation to the quantum of the appellants’ individual claim in the class action. To provide such advice he must have been briefed to represent their interests in relation to their claim, and we infer that he also considered them to be class members.

11    On 15 February 2018 the primary judge made class closure and claim preclusion orders which required class members to register their claim by 23 March 2018 if they wished to participate in any distribution of any amount agreed in settlement. The appellants lodged registration forms as provided by the orders and thereby became registered class members.

12    On 24 April 2018 the primary judge made orders setting out a procedure for the determination of Preliminary Questions concerning whether, in respect of registered class members in relation to whom Malaysian Airlines raised such an issue, there was jurisdiction under Art 33 of the Convention in respect of their claim. Malaysian Airlines relied upon an affidavit sworn on 8 May 2018 by Mr Paul Freeman, a solicitor in the global law firm engaged to represent its interests, in which he deposed that the appellants’ claim did not fall within any of the categories under Art 33 of the Convention; the implication of which was that the Court did not have jurisdiction in respect of their claim.

13    On 20 June 2018 Mr Christopher Barry QC and Mr Rowe prepared and signed submissions on behalf of the applicant for the hearing of the Preliminary Questions, in which they formally conceded that the Court did not have jurisdiction to decide the appellants’ claim because their claim did not fall within any of the categories in Art 33. LHD filed the submissions on 5 July 2018. As the class description followed the categories in Art 33 the concession was also to the effect that the appellants were not class members. At the hearing of the application for determination of Preliminary Questions on 2 August 2018 Malaysian Airlines accepted the concession, and the Preliminary Questions were not answered by the Court. Thereafter, the lawyers for the parties to the class action proceeded on the basis that the appellants were not class members. They did nothing to give legal effect to the concession such as, for example, obtaining orders to amend the class description or a declaration that the appellants are not class members.

14    However, Ms Gibson as the representative applicant had no authority under Part IVA of the Act to concede the merits of the appellants’ individual claim, nor did LHD and counsel in acting on her behalf. Further, LHD and counsel made the concession without instructions from the appellants; indeed without communicating with them at all about the procedure under the Preliminary Question to finally determine their individual claim or the possibility that the concession might be made. Inexplicably, to make things worse, LHD did not even tell the appellants that it had made the concession and for the next year the appellants continued to understand that they were class members, and continued to interact with LHD on that basis.

15    In June 2019 Malaysian Airlines reached an in-principle settlement with the applicant and identified registered class members. LHD acted for the applicant and each of the identified class members, and the settlement provided for individual settlement amounts for the applicant and each family group of identified registered class members. The settlement was not global in nature; that is, it did not purport to bind class members other than those identified. The appellants were not included in the settlement, we assume because the parties considered that they were not class members.

16    The application for settlement approval under s 33V of the Act came before the primary judge on 26 June 2019. Mr Rowe appeared for the applicant. He told the Court that the settlement covered all class members, that they all had given instructions to settle, and, significantly, that all class members were “before the Court”. Counsel sought orders for approval of the settlement and dismissal of the proceeding. The primary judge made the orders sought, doing so on the express basis that all affected class members were before the Court: Gibson v Malaysian Airline System Berhad (Settlement Approval) [2019] FCA 1007 (Gibson Settlement Approval).

17    Mr Rowe also moved for an order that the requirement in s 33X(4) of the Act that notice of the settlement be given to group members be dispensed with, doing so on the basis that notice was unnecessary because all parties were before the Court. That was not, however, an accurate statement of the position. For the reasons we explain, we consider the appellants are class members. They were not given notice of the proposed settlement and thus not given the opportunity to object to it or to seek that they be included in it. They did not know that LHD and counsel had, without the applicant having authority and without their providing instructions, purported to concede that the Court lacked jurisdiction to hear and decide their claim. On the basis of the submission made by Mr Rowe, the primary judge made an order that the requirement in s 33X(4) was taken to have been satisfied. In consequence, the orders approving the settlement and dismissing the proceeding made on 26 June 2019 were made without notice to the appellants.

18    On 17 July 2019 the appellants discovered that the class action had been settled through an online media report, and they immediately made inquiries of LHD in that regard. To add insult to injury, notwithstanding that the appellants were clients of the firm and LHD had repeatedly advised them that they were class members, LHD refused to provide them with any information, telling them that the settlement was confidential. The appellants were concerned and, having lost confidence in LHD, they filed their own interlocutory application on 7 August 2019. Their application was drafted without legal assistance but it sought orders essentially directed to obtaining more information about the settlement and their being allowed to continue to pursue their claim through the class action either as representative applicants or as a sub-group.

19    The interlocutory application came before the primary judge on 28 August 2019 which was the first return date. The appellants represented themselves. Mr Rowe (for Ms Gibson as the applicant, instructed by LHD) and Ms C Gleeson (for Malaysian Airlines) both appeared to oppose the application. In opposing the application LHD and Mr Rowe acted against their former clients in the very matter in which they had been retained, and in doing so they must have relied on instructions they had been given by the appellants. Plainly, that was a breach of their professional obligations.

20    Mr Rowe provided little assistance to the primary judge and his Honour was left in the dark about what had taken place, including that:

(a)    LHD had repeatedly advised the appellants that they fell within one or more of the categories under Art 33 of the Convention;

(b)    LHD and Mr Rowe had acted for the appellants in their individual claim and yet were appearing against them in relation to the very matter in which they acted;

(c)    LHD and counsel had conceded on behalf of the applicant that the appellants did not have a claim in Australia under the Convention when the applicant did not have authority to do so;

(d)    LHD and counsel had made that concession without having any instructions from the appellants to do so; and

(e)    to that day LHD had not told the appellants about the concession.

21    The primary judge was not provided with the full picture and his Honour proceeded to finally determine whether the appellants were class members within the class description in the amended statement of claim, doing so on the spot and without further evidence or submissions. His Honour took that course on the basis that he was exercising a jurisdiction to quell a dispute as to whether the appellants were class members and therefore bound by the settlement or not. But the appellants had not sought that question to be determined. Rather, the substance of their application was that they be appointed as representative applicants or as a sub-group in the class action, so that they could continue to pursue their claim through the proceeding. They were not before the Court as applicants in their own proceedings. Rather, they claimed to be class members who had not been notified of the application for settlement approval and dismissal of the proceeding and for that reason the class action should be allowed to continue.

22    The primary judge declared that the appellants are not class members within the meaning of the class description in the amended statement of claim. The declaration spoke at the time it was made, but was based upon reasoning to the effect that the appellants had never fallen within the amended class description. It was not based upon a consideration of the effect of the orders made on 26 June 2019 to approve the settlement and dismiss the proceeding. The primary judge looked behind those matters and concluded that the appellants were not class members within the amended class description because they could not demonstrate that they met any of the three subparagraphs of the description.

23    In the appeal, the appellants seek to set aside the declaration that they are not class members, and to set aside the order dismissing the proceeding so that they may continue with their claim against Malaysian Airlines. They do not however appeal against the primary judge’s approval of the settlement, and they do not seek to disturb the settlement between Malaysian Airlines, the applicant and identified class members.

24    To the extent it is necessary, the appellants also seek leave to withdraw the concession made in relation to their claim.

25    In the course of the appeal the respondents contended that three matters stood in the appellants’ way, namely:

(a)    there is no factual basis upon which the appellants fall within the class description and therefore, irrespective of whether the claimants are registered group members, the Court has no jurisdiction to hear and determine the appellants’ claim;

(b)    the concession by the applicant that the Court has no jurisdiction to hear and determine the appellants’ claim should be carried into effect; and

(c)    the appellants’ claim has been extinguished because the amended class description only came into effect on 2 May 2017, after the two year limitation period under Art 35 of the Convention had run.

Significantly, the respondents did not contend that if those matters were not accepted then the primary judge’s order to approve the settlement and dismiss the class action stood in the way of the relief sought by the appellants. But even if they had made such a contention, those orders could not stand in the appellants’ way as, in our view, the appellants are class members and the orders were made without notice to them.

26    For the reasons we explain, none of the matters raised by the respondents in answer to the appeal are reasons why the appellants should not be allowed to proceed with their claim:

(a)    in relation to the contention that there is no factual basis upon which the appellants fall within the class description, we disagree. The affidavit evidence on appeal discloses that there exist facts, circumstances and legal rights, anterior to and separately from the class action, which may ground the appellants having a right or entitlement to relief under subparagraph (iii) of the class description. The fact that they may not succeed at trial in showing that they fall within that subparagraph does not mean that they do not have a bona fide claim to do so. At this stage it is unnecessary for them to be able to establish a right or entitlement to relief;

(b)    in relation to the purported concession:

(i)    the appellants were not given notice of the application to determine the Preliminary Questions which would have the effect of finally determining the merits of their claim to fall within one or more of the categories under Art 33;

(ii)    the representative applicant had no authority under Part IVA to make the concession; her authority was limited to the common claims in the proceeding;

(iii)    the appellants did not give instructions to make the concession;

(iv)    in any event, the parties took no steps to give legal effect to the concession by obtaining orders to amend the class description or to declare that the appellants are not class members; and

(v)    Malaysian Airlines cannot now take steps to give legal effect to the concession, it having been apprised of the circumstances in which it was given. The appellants have demonstrated a proper basis to withdraw the concession as it was made without the applicant having authority or their having given instructions and there is no relevant prejudice to Malaysian Airlines or the applicant; and

(c)    in relation to the contention that the appellants’ claim has been extinguished by operation of Art 35 of the Convention, that is an argument which Malaysian Airlines unsuccessfully ran before the primary judge at an earlier stage in the class action. It did not appeal from primary judge’s disposition of that argument and it should not be accepted as a reason why the relief sought in the appeal should not be granted. The appropriate course is for that argument to remain one that Malaysian Airlines may raise in answer to the appellants’ claim, when it is finally determined.

27    It is appropriate to make orders:

(a)    to the extent that the appeal concerns the orders to approve the settlement and dismiss the proceeding made by the primary judge on 26 June 2019, to extend the time for filing the appeal such that the appeal is made within time;

(b)    to grant leave to the appellants to advance a ground of appeal, advanced for the first time in the course of the hearing;

(c)    to grant leave to Malaysian Airlines to file a notice of contention within seven days, reflecting ground three in the draft cross appeal;

(d)    to refuse leave to Malaysian Airlines to extend the time to file and rely upon the notice of cross appeal and the notice of contention;

(e)    to allow the appeal;

(f)    to set aside the declaration of the primary judge on 28 August 2019 that Dr Dyczynski and Ms Rudhart-Dyczynski are not class members within the class description in the amended statement of claim;

(g)    to grant leave to the appellants to withdraw the concession made on behalf of the applicant in submissions filed 5 July 2018;

(h)    to set aside the order dismissing the proceeding so that the proceeding remains on foot;

(i)    to vary the settlement approval order so that it expressly provides that it only concerns Malaysian Airlines, the applicant and the registered class members identified in the release referred to, and to also make an order under s 33ZB to clearly describe and define the persons bound by the settlement. Making those orders will leave the settlement between Malaysian Airlines, the applicant and the identified registered class members undisturbed;

(j)    to allow the appellants, should they choose to do so within 3 months from the date of the order, to proceed with the class action by substituting the appellants as the applicants and then to order that the action no longer continue as a class action under Part IVA, pursuant to 33N of the Act on the basis that an order to de-class the proceeding is appropriate because the relief sought by the appellants is more appropriately obtained in an individual rather than a class action;

(k)    to provide for the new proceeding to be docketed to another judge, in the usual way. We mean no criticism of the primary judge as he was left in the dark by LHD and counsel, but the appellants seek that the matter be allocated to a different judge, and in the interests of justice being seen to be done, it is appropriate to take that course; and

(l)    in the exercise of the Court’s protective role in relation to class members’ interests, to provide for the legal personal representatives of two other passengers killed on MH17, in relation to whom it appears the concession also operated, to be given a copy of these reasons so that they may apply to the Court if appropriate. We do so because they may also have had their rights to make a claim conceded without authority or instructions.

28    In relation to costs, it is appropriate to order that Malaysian Airlines pay the appellants’ party/party costs of and associated with the appeal and the appellants’ interlocutory application. As to the unsuccessful opposition to the appeal by Ms Gibson, there is a question as to the appropriate costs order. In our view, an issue arises as to whether LHD or counsel should pay the appellants’ costs of and associated with the appeal and the appellants’ interlocutory application, and if so, whether the costs order should be made on a party/party or an indemnity basis.

29    As we have noted, LHD was afforded an opportunity to put on evidence in the appeal. But it was not heard on the question of costs. Therefore, the orders provide for LHD to show cause why it should not pay the appellants’ costs of and associated with the appeal and the appellants’ interlocutory application before the primary judge on either a party/party or an indemnity basis with any liability of Malaysian Airlines to meet those costs only to arise in the event that LHD fails to pay the costs. The orders also allow LHD to file evidence and short submissions in relation to costs within 14 days, and further provide that if LHD contends that counsel should contribute to such costs, then counsel should file evidence and short submissions within a further 14 days as to whether there should be any such contribution. The orders allow the appellants and Malaysian Airlines to file short responsive submissions within 14 days thereafter.

THE MONTRÉAL CONVENTION

30    To understand what went wrong in the conduct of the proceedings the subject of appeal, it is necessary to understand the requirements of the Montréal Convention, and how it applies in the circumstances of the present case.

31    Australia is a State party to the Montréal Convention. Pursuant to s 9B of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) (CACLA) subject to some qualifications which are not relevant for present purposes, the Convention has the force of law in Australia in relation to an international air flight for reward, irrespective of the nationality of the aircraft performing that carriage.

32    Article 17(1) of the Convention provides:

Article 17--Death and Injury of Passengers--Damage to Baggage

1.    The carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking.

Art 17(1) creates a cause of action rather than recognising a cause of action which exists independently: United Airlines Inc v Sercel Australia Pty Ltd [2012] NSWCA 24; (2012) 260 FLR 37 at 51 [47] per Allsop P (as his Honour then was).

33    Section 9D(2) of the CACLA provides that, subject to some exceptions which are not material, “the liability under the Convention is in substitution for any civil liability of the carrier under any other law in respect of the death of the passenger”. Unlike in some other States, in Australia civil liability for the carrier in respect of the death of a passenger is eliminated outside of the Convention.

34    Article 21 sets out a scheme of compensation in the case of a deceased passenger, and provides a first tier of compensation on a no fault basis and a second-tier of compensation having a full component with a reverse onus of proof on the airline.

35    Article 33 of the Convention provides various categories such that, depending on the circumstances, courts in different countries may have jurisdiction to hear and determine a claim under the Convention. Thus it sets out the necessary circumstances for a claim under the Convention to be brought in Australia. It provides:

Article 33 - Jurisdiction

1.    An action for damages must be brought, at the option of the plaintiff, in the territory of one of the States Parties, either before the court of the domicile of the carrier or of its principal place of business, or where it has a place of business through which the contract has been made or before the court at the place of destination.

2.    In respect of damage resulting from the death or injury of a passenger, an action may be brought before one of the courts mentioned in paragraph 1 of this Article, or in the territory of a State Party in which at the time of the accident the passenger has his or her principal and permanent residence and to or from which the carrier operates services for the carriage of passengers by air, either on its own aircraft, or on another carrier’s aircraft pursuant to a commercial agreement, and in which that carrier conducts its business of carriage of passengers by air from premises leased or owned by the carrier itself or by another carrier with which it has a commercial agreement.

3.    For the purposes of paragraph 2,

(a)    “commercial agreement” means an agreement, other than an agency agreement, made between carriers and relating to the provision of their joint services for carriage of passengers by air;

(b)    “principal and permanent residence” means the one fixed and permanent abode of the passenger at the time of the accident. The nationality of the passenger shall not be the determining factor in this regard.

4.    Questions of procedure shall be governed by the law of the court seized of the case.

36    Art 33 therefore permits actions for damages for a death or injury of a passenger to be brought before a court in one of five potential locations.

(a)    First, the State where the carrier is domiciled. In the present case that is Malaysia, not Australia;

(b)    Second, the State where the carrier has its principal place of business. In the present case that is Malaysia, not Australia;

(c)    Third, the State where the carrier has a place of business through which the contract of carriage was made. Dr Dyczynski purchased Fatima’s ticket online. He was in Australia when he did this and he (and we infer LHD) thought that the contract of carriage was therefore through Malaysian Airlines office in Australia. But on its face the Travel Itinerary Receipt issued by Malaysian Airlines (the ticketing itinerary) indicates that the ticket was issued through the Malaysian Airlines’ office in Amsterdam;

(d)    Fourth, the State which is the place of destination. Dr Dyczynski (and LHD) thought that because Fatima was travelling from Amsterdam to Perth, that Australia was the place of destination. That was not so. The decision of the New South Wales Court of Appeal in Gulf Air Co GSC v Fattouh [2008] NSWCA 225; (2008) 230 FLR 311 (Gulf Air) establishes that, for the purposes of Art 33, the destination of a return ticket is the place of return. Fatima was booked on a return ticket from Amsterdam to Perth and thus the place of destination was the Netherlands.

(e)    Fifth, the State where the passenger had his or her “principal and permanent residence” at the time of the accident and to or from which the carrier operated services, either on its own aircraft or on another carrier’s aircraft pursuant to a commercial agreement, and from which the carrier conducts its business of carriage of passengers from premises leased or owned by the carrier or another carrier. The appellants put on substantial evidence in the appeal in support of the contention that Australia was Fatima’s principal and permanent residence at the time MH17 was shot down. Malaysian Airlines put on evidence to show that it was not and foreshadowed cross examination. For the reasons we explain, it is inappropriate for the Court sitting in its appellant jurisdiction to decide that contested issue of mixed fact and law. It is a matter for decision on the final determination of the appellants’ claim.

37    Article 35 of the Convention provides:

Article 35 - Limitation of Actions

1.    The right to damages shall be extinguished if an action is not brought within a period of two years, reckoned from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped.

2.    The method of calculating that period shall be determined by the law of the court seised of the case.

38    Any claim for damages by the appellants was therefore required to be brought by 18 July 2016, or the right to do so would be extinguished. The proceeding by Ms Gibson on her own behalf and on behalf of the class members was filed on 1 July 2016, but the class description in the statement of claim was poorly drafted and it was struck out. Leave to amend was given, but only with effect from 2 May 2017. Malaysian Airlines contends that as at 2 May 2017 all class members’ claims had been extinguished by operation of Art 35.

THE EVIDENCE

39    The appellants rely upon a lengthy affidavit of Dr Dyczynski affirmed 1 April 2020, which largely goes to the procedural history of the class action, and the correspondence and dealings between the appellants and LHD. The appellants also seek to rely upon another lengthy affidavit of Dr Dyczynski affirmed 1 April 2020 and seven other affidavits going to the issue of whether Australia was Fatima’s principal and permanent place of residence at the time of the incident.

40    Malaysian Airlines and Ms Gibson opposed leave to adduce further evidence going to Fatima’s principal and permanent place of residence on the basis that: (a) it was available to be put before the primary judge, but was not; and (b) it was not capable of leading to a different conclusion to that reached by the primary judge. But if leave is granted, Malaysian Airlines seeks to rely on affidavit material in reply. The evidence in respect to that question is contested and cross examination was foreshadowed.

41    On 17 March 2020 Lee J ordered that if the legal representatives for Ms Gibson disputed aspects of the affidavits filed by the appellants they had leave to file and serve any affidavits upon which they wished to rely. Mr Michael Hyland, denoted as special counsel in the employ of LHD, filed an affidavit made 15 April 2020 which also goes to the procedural history of the class action, and the correspondence and dealings between the appellants and LHD.

42    Shortly prior to the commencement of the hearing the Court informed the parties that it had formed the preliminary view that, irrespective of the outcome of the appeal, it did not propose to determine and hence make findings in relation to whether Australia was Fatima’s principal and permanent place of residence at the time of the incident. As a consequence the Court proposed to grant leave for the following affidavits to be relied upon subject to any specific objections which would be ruled upon:

(a)    affidavit of Dr Jerzy Dyczynski (111 paragraphs) affirmed 1 April 2020;

(b)    affidavit of Michael Hyland affirmed 15 April 2020;

(c)    affidavit of Miles Bryant affirmed 20 April 2020; and

(d)    affidavit of Miles Bryant affirmed 22 April 2020.

43    It was proposed that such leave would be subject to a general limitation made pursuant to s 136 of the Evidence Act 1995 (Cth) that it does not constitute evidence as to Fatima’s principal and permanent place of residence at the time of the incident, but rather is evidence admissible only as to the other asserted facts deposed to in the affidavits, including: (a) the procedural history of the class action proceeding below; (b) the fact of the assertion made by the appellants that they have a claim against Malaysian Airlines; (c) communications made to the appellants in relation to the class action and its conduct; and (d) the fact and content of communications between the appellants and their lawyers.

44    The Court also expressed the preliminary view that leave would not be granted to rely upon a further nine affidavits filed by the parties which were directed to the question of Fatima’s principal and permanent place of residence at the material time. Those affidavits are:

(a)    affidavit of Dr Jerzy Dyczynski (67 paragraphs) affirmed 1 April 2020;

(b)    affidavit of Auguste Angela Rudhart-Dyczynski affirmed 1 April 2020;

(c)    affidavit of Rosaria Giglia affirmed 1 April 2020;

(d)    affidavit of John Bryan Bond affirmed 1 April 2020;

(e)    affidavit of Tamryn Barker affirmed 1 April 2020;

(f)    affidavit of Jane Clough affirmed 1 April 2020;

(g)    affidavit of Denise Cooper affirmed 1 April 2020;

(h)    affidavit of Auguste Angela Rudhart-Dyczynski affirmed 28 April 2020; and

(i)    affidavit of Miles Bryant affirmed 8 May 2020.

45    The appellants however sought, and the respondents did not oppose, those affidavits also being admitted into evidence, subject to the limitation that they were admissible only to prove the nature of the evidence regarding Fatima’s principal and permanent place of residence that could have been adduced by the appellants. The appellants sought to rely upon that evidence only to show they had suffered practical injustice for the purposes of a procedural fairness ground of appeal.

46    No party sought to be heard in opposition to the Court’s preliminary view and the case proceeded upon the basis that all of the affidavits filed are admissible, subject to the limitations expressed above.

47    At the commencement of the appeal hearing the parties were informed that, unless any party wished to be heard on the question, the Court proposed to proceed on the basis that, through Mr Hyland’s affidavit, LHD had said all that it wished to say about the procedural history of the class action and the communications between the appellants and LHD. No party sought to be heard.

THE FACTS AND PROCEDURAL HISTORY

48    In large part the facts and procedural history is uncontentious and we have drawn the following from the affidavits of Dr Dyczynski, Mr Hyland and Mr Bryant.

The retainer of LHD

49    Mr Hyland deposed that in or around August 2014 LHD commenced to receive instructions from persons in respect to the death of people who were passengers on MH17 and their families.

50    On 13 August 2015 the appellants conferred in Perth with Mr Jerry Skinner, a US-based aviation law attorney working as a consultant with LHD. A few days after the meeting LHD sent the appellants a proposal for the appellants to retain LHD to act for them in a claim for damages in relation to Fatima’s untimely death, and provided a “Final Conditional Standard Costs Agreement” for the appellants to sign and return.

51    The appellants entered into the Conditional Standard Costs Agreement with LHD (the Retainer) on 15 January 2016. The scope of the Retainer includes “any claim for compensation pursuant to the Montréal Convention and/or any other potential claim which is now, or may in the future be, available” to the appellants. Under the Retainer LHD was required to:

Complete a claim for damages and compensation in a court or courts of competent jurisdiction where all of the culpable parties responsible for the destruction of MHA17 where they may be subject to jurisdiction.

52    It will be recalled that, subject to some exceptions which are not material, s 9D(2) of the CACLA eliminates civil liability for international air carriers for reward in respect of the death of a passenger outside of the Montréal Convention. Therefore, the only claim for damages that the appellants could bring in Australia was a claim under the Convention. Pursuant to the Retainer LHD was obligated to investigate the factual circumstances in relation to the appellants’ claim, act with professional skill, care and competence in deciding which of the grounds under Art 33 permitted their claim to be heard in Australia, decide whether their claim could be commenced in Australia or whether it was better that it be in a court in another country allowed under Art 33 and provide advice to the appellants in that regard.

53    On 14 May 2016 Mr Hyland, at the time an associate in the employ of LHD, wrote to the appellants and noted that a two year limitation period applied to claims under the Convention. He said that to “ensure that your position is protected we will be commencing proceedings by filing a Statement of Claim in the NSW Supreme Court prior to 17 July 2014”. The reference to 2014 was obviously just an error. The letter contained a list of documents that LHD required to establish the appellants’ claim in respect to Fatima’s death, including:

Itinerary for 2014 Malaysian Airlines flights and any documents associated with the booking and payment for those flights.

LHD did not request information about Fatima’s “principal and permanent residence” under the Convention.

54    The appellants responded on 19 May 2016 providing, amongst other things, a copy of the ticketing itinerary for Fatima’s travel on MH17 and the credit card record for Dr Dyczynski’s online purchase of the ticket. The ticketing itinerary clearly showed that Fatima’s flight on MH17 was to be from Amsterdam to Perth via Kuala Lumpur and return. We infer that Mr Hyland did not understand the significance of that in relation to the relevant category of jurisdiction under the Convention.

55    On 23 May 2016 Mr Hyland and Mr Skinner conducted a Skype conference call with the appellants. The conference focused on questions in relation to the appellants’ financial dependency, if any, on Fatima. Mr Hyland’s file note of that conference records the appellants’ instructions that Fatima resided in Delft in the Netherlands and intended to apply for Australian residency.

Commencement of the class action

56    On 28 June 2016 the appellants wrote to Mr Hyland requesting a copy of the proposed pleading of their claim against Malaysian Airlines so they could review it before it was filed. Mr Hyland did not respond.

57    Instead, on 1 July 2016 LHD commenced a class action with Ms Gibson as the representative applicant. Ms Gibson’s daughter had also been killed on MH17 and the originating application said that she brought the claim in a representative capacity “on behalf of the representatives of the deceased passengers”. The class description in paragraph seven of the statement of claim provided as follows:

The group members are:

a.    residents of Australia who are the legal representatives of a passenger who was killed on MH17; or

b.    not being resident in Australia, who are the legal representatives of a passenger who was killed on MH17 and express the desire to take the benefit of the action (Civil Aviation (Carrier’s Liability) Act 1959 (Cth), Section 9D(6)(b)).

The appellants fell within the first limb of the class description and were thus class members.

58    On 12 July 2016 the appellants wrote to Mr Hyland saying that they had not received the pleading despite their earlier request and they were concerned about the time left to file it. They asked for a draft as soon as possible. It appears that at that point the appellants understood that LHD would file an individual proceeding for them.

59    On 13 July 2016, five days before the limitation period under Art 35 expired, Mr Hyland wrote to the appellants. Amongst other things, he said:

To protect the position of you and our other MH 17 passenger family clients, we have commenced representative proceedings, a class action in the Federal Court of Australia (‘the Court’). We enclose for your perusal a copy of the Application and Statement of Claim filed in the Federal Court.

You will note that the Lead Applicant is Cassandra Gibson. Ms Gibson’s mother the late Liliane Derden had a contract of carriage with the defendant to fly Sydney-Kuala Lumpur-Amsterdam-Kuala Lumpur-Perth

Rather than filing a Statement of Claim for each individual client the most cost effective mechanism for each LHD client is for a compensatory damages claim against the defendant to be pursued as a class-action. For the matter we have briefed John Rowe Barrister and Chris Barry QC. It is likely that we will request you to confer with one or both Barristers in the future.

The Lead Applicant Cassandra Gibson will play a critical role in the class-action. Ms Gibson will be responsible for instructing us in the liability case against the defendant.

You are one of the ‘group members’ referred to in paragraphs 16 and 17 of the Statement of Claim.

60    That was the first time Mr Hyland told the appellants that their claim for damages in respect of Fatima’s death would be brought within a class action rather than as an individual proceeding. While there were likely to be some cost advantages for the appellants in having their claim conducted through a class action, it had the drawback that class members in a representative proceeding are not parties to the proceedings and do not direct the conduct of the proceeding: Mobil Oil Australia Pty Ltd v State of Victoria [2002] HCA 27; (2002) 211 CLR 1 (Mobil Oil) at [37]-[38], [40], and [50] (Gaudron, Gummow and Hayne JJ). The materials show that the appellants took a very close interest in the litigation and for them it was about more than money. There is nothing to show that LHD sought instructions from the appellants in this respect or explained to the appellants that they would be unable to direct the conduct of the class action.

The application to strike out the class description

61    On 19 September 2016 Malaysian Airlines applied to strike out the class description in paragraph seven of the statement of claim (and also other parts not presently relevant). The class description (set out above at [57]) had two defects:

(a)    the class description was framed by reference to the place of residence of the legal representative of a passenger killed on MH17, whereas under Art 33 the only jurisdictional requirement by reference to residence concerned the principal and permanent residence of the passenger, not his or her legal representative; and

(b)    subparagraph (b) purported to require class members to “opt in” to the class action by requiring that they “express the desire” to take the benefit of the action. Commonwealth Parliament made a deliberate choice in enacting an opt out regime and the purported requirement to opt in was invalid, but this defect in the class description was not the subject of the application.

62    On 9 December 2016 the primary judge struck out the class description but granted the applicant leave to replead: Gibson v Malaysian Airline System Berhad [2016] FCA 1476. The strike out application did not require the primary judge to decide whether claims made by class members in the proceeding were or were not arguable, and his Honour did not do so. His Honour said at (at [27]) that the application was “not concerned with the viability of the claims which the legal personal representatives or family members have arising from the death of a passenger per se in some court.” The issue in the strike out was the drafting of the class description and whether it included persons who could not bring claims under the Convention in Australia.

63    His Honour said (at [27]) that the applicant was not required to plead facts establishing the Court’s jurisdiction in respect of class members’ claims, but the class description was badly drafted and it included claims “not cognisable under the Montréal Convention by this Court” (at [9]). His Honour said (at [25]) that the class description defined the class:

…in a way which does not have the effect of ensuring that Art. 33 is engaged. The class is therefore defined in a way which means that group members need not have rights which this Court has jurisdiction to enforce.

In effect the primary judge concluded (and we would respectfully agree) that while the class description included persons with a claim for damages in Australia under the Convention, it also included persons who could not have had such a claim; for example, persons who could not claim to satisfy one or more of the categories of jurisdiction in Art 33.

64    Malaysian Airlines also argued that Art 33 expressed jurisdictional requirements that must form part of any claim, and that they must be able to be identified as the foundation for a claim that is brought within time. It contended that if the Court found that the statement of claim was defective in not pleading the jurisdictional requirements, that was a defect that could not be remedied by the time of the strike out application because the two year limitation period under Art 35 had expired, and a claim not brought within two years was extinguished. It submitted that the difficulty with the class description was that it did not identify any of the jurisdictional requirements as being met by class members, and the proposed amendment to the class description could only take effect from the date of amendment. It contended that class members’ claims were extinguished by that time by the operation of Art 35.

65    The primary judge did not at that point decide the date from which any amended class description would take effect. His Honour said (at [37]) that “[w]hilst I can see an argument that the notional claims of any new class members will be statute barred, I am not presently prepared to say that this is an inevitable result.” His Honour granted leave to the applicant to file an amended statement of claim within six weeks so that the class description met the requirements of Art 33 but said (at [9]) that the applicant would “need to demonstrate on that application for leave to amend that the class definition does not result in claims which are inevitably statute barred.”

66    Mr Hyland did not inform the appellants of the result of the strike out application and the appellants only learned of it through a media report on 15 December 2016. That day the appellants sent an email to Mr Hyland stating:

Please find attached the copy of the press article from 15 December 2016 in the West Australian.

We request from you the explanation of our claim and our legal situation and the full information about the next steps you are planning.

Is it a class action you have involved us still an option for us or do we need urgent a different claim?

Mr Hyland responded by email the same day stating that “[w]hile the judgment is a setback, it is not fatal to the claim.”

67    By letter to Mr Hyland on 16 December 2016 the appellants said that they had not been provided with a copy of the decision on the strike out and did not have “the details of the definition of class member”, but they assumed that their claim in relation to Fatima’s death could not be brought within the class action and therefore they would need to make a separate individual claim. They asked LHD to draft such a claim and provide it to them at least one week before 19 January 2017, which they understood to be the cut-off date for any amendment contemplated by the primary judge’s orders.

68    On 4 January 2017 Mr Hyland sent an email to the appellants. Relevantly he said:

I also take this opportunity to address your December 2016 email concerns that you and Mrs Rudhart-Dyczynski are not group members in the Federal Court of Australia Representative Proceedings. With respect, you have been unnecessarily alarmed by the article appearing in the West Australian (which was not written by a lawyer) shortly after the Court entered orders on 9 December 2016 in respect to the respondents Interlocutory Application

Fatima’s contact of carriage with MAS ended in Perth, Western Australia. Perth was therefore the “place of destination”.

Australia is a signatory to MC99 [ie the Montreal Convention]. Under Article 33(1) of MC99, Jurisdictions in which an action for damages must be brought include “before the court at the place of destination.”

MC99 is incorporated into Australian Law under the Commonwealth Civil Aviation (Carriers Liability) Act 1959 (“CACL”) As the CACL is federal legislation, the Federal Court of Australia is the appropriate jurisdiction for a damages claim to be pursued.

The respondent’s Interlocutory Application was designed to exclude from the Representative Proceedings MH 17 passenger victim’s families in the circumstances which applied to the majority of the passengers on the aircraft, namely the “place of destination” of the majority WAS NOT Australia. The only paragraph of the Applicant’s Statement of Claim struck out was paragraph 7 which provided a definition of Group Members.

(Emphasis added.)

The email concluded by stating that senior and junior counsel had drawn an amended statement of claim “which provides a far more detailed definition of Group Members”.

69    Thus Mr Hyland advised the appellants that they were able to bring a claim for damages in Australia under Art 33 because the place of destination of Fatima’s travel was Australia, and they were class members in the proceeding. We expect that the appellants were reassured by that advice but it was wrong. For the purposes of claims for damages under the Convention for the injury or death of a passenger, the destination on a return ticket is the destination of the travel: Gulf Air. A cursory examination by LHD of the ticketing itinerary would have revealed that the ticket was for a return journey to Amsterdam.

70    Pursuant to the Retainer LHD was obliged to commence the appellants’ claim to damages under the Montréal Convention “in a court or courts of competent jurisdiction where… the culpable parties responsible…may be subject to jurisdiction”. At least in relation to jurisdiction under Art 33 based on the “place of destination”, the proper place for LHD to commence, or recommend the commencement of, the appellants’ case was in the Netherlands. There is nothing in the evidence to show that LHD provided any advice to the appellants in that regard. As a result, despite instructing LHD well within time, the appellants lost their opportunity to bring a claim in the Netherlands.

71    On 8 April 2017 the appellants sent an email to Mr Hyland asking for an update. Mr Hyland responded by email on 10 April 2017 and informed the appellants that an application had been filed for leave to amend the statement of claim and there would be a hearing of that application on 2 May 2017. Mr Hyland reiterated his advice that the appellants were class members in the class action and said that once the procedural hurdles had been overcome:

…we can then focus on evidentiary preparation required for our individual group member claims, including the claim for you and Mrs Rudhart-Dyczynski.

The application to amend the class description

72    On 2 May 2017 the primary judge heard the applicant’s application for leave to amend the class description, which was opposed by Malaysian Airlines. On 23 June 2017 his Honour granted leave to file an amended statement of claim containing a revised class description: Gibson v Malaysian Airline System Berhad (No 2) [2017] FCA 701 (Gibson No 2).

73    The amended class description provided as follows:

The group members are personal representatives of passengers:

(i)    Whose destination on the contract of carriage was Australia;

(ii)    Whose contract of carriage was made in Australia where the Respondent has a place of business through which the contract was made; or

(iii)    Where Australia was the passenger’s principal and permanent place of residence at the time of the accident and to or from which the Respondent operated services on its own or using another carrier’s aircraft by commercial agreement and from which the Respondent conducts its business or carriage of passengers from premises leased or owned by the Respondent (or other carrier).

74    Malaysian Airlines accepted that this class description satisfied the jurisdictional requirements of Art 33 of the Convention but argued that leave to amend should not be granted as: (a) no class members’ claims had been pleaded in the class description in the original statement of claim which invoked a jurisdictional basis under the Convention for a claim by class members; and (b) when the amended class description came into effect on 2 May 2017, the two year limitation period under Art 35 had already expired, with the result that the rights of class members to bring their claims for damages had been extinguished, citing the High Court decision in Agtrack (NT) Pty Ltd v Hatfield [2005] HCA 38; (2005) 223 CLR 251 (Agtrack).

75    His Honour noted the complexities that arose in considering whether the claim as amended meant that class members’ claims were out of time because of the defect in the original pleading, but dealt with that by making clear that the amendment took effect from 2 May 2017 (at [40]). In granting leave, the primary judge observed that the application to amend the class description was made outside the two year period prescribed by the Convention (at [9]), and said that the amendment should take effect from when it was proposed, being 2 May 2017 (at [34]). He concluded that if 2 May 2017 was the date when those class members’ claims were first raised, then those claims were out of time and it would be futile to grant leave to amend (at [35]-[36]).

76    His Honour however rejected the contention that all class members’ claims were inevitably statute barred. Instead, he found (at [36]) that it was likely, and certainly at least arguable, that persons who fell within the original class description which was struck out (inter alia, “residents of Australia who are the legal representatives of a passenger who was killed on MH17”) and also within the new class description (inter alia, “personal representatives of passengers…whose destination on the contract of carriage was Australia) had commenced their claims within time. In effect, his Honour granted leave to amend on the basis that Malaysian Airlines’ limitation argument could be made when class members’ claims came on for final hearing.

The opt out notice

77    On 5 September 2017 the primary judge made orders for the provision of an opt out notice to class members and to require that any class member who wished to opt out must do so by 28 November 2017. The opt out process was subsequently deferred and the date for filing an opt out notice extended to 9 February 2018. The opt out notice stated:

Are you are a class member?

You are a class member if you are the personal representative of a passenger or passengers who were on board flight MH17 on 17 July 2014, an aircraft operated by the Respondent, if in respect of those passenger(s):

 (i)    the passenger’s destination on the contract of carriage was Australia; or

 (ii)    the passenger’s contract of carriage was made in Australia; or

(iii)    Australia was the passenger’s principal and permanent place of residence at the time of the accident on 17 July 2014.

If you are unsure whether or not you are a class member, you should contact LHD Lawyers on [telephone number] or email [Mr Hyland’s email address] or seek your own legal advice without delay.

That description reflected the class description in the amended statement of claim.

78    Paragraph seven of the opt out notice provided that, if the class member did not opt out, he or she would be bound by the result and entitled to share in the benefit of any order, judgment or settlement in favour of the applicant and class members. Paragraph eight informed the recipient class member that if they wished to remain as such “there is nothing you need to do at the present time”. Importantly, the notice informed class members that the applicant would bring the proceeding on the class members’ behalf “up to the point where the Court determines those questions that are common to the claims of the applicant and the class members”.

79    On 1 October 2017 the appellants wrote to Mr Hyland seeking a conference in mid-November. They requested copies of all relevant documents including the application, the statement of claim and the defence in order to make an informed decision as to whether to opt out.

80    On 9 October 2017 Mr Hyland sent an email to the appellants stating, amongst other things:

We confirm our recent advice that we have overcome the jurisdictional hurdles placed in front of us by the defendant carrier in the Federal Court of Australia Class Action. Unsurprisingly, the respondent has now expressed a keen interest in negotiating a resolution of individual claims.

The email proposed arrangements for the appellants to undergo medical examinations to assist in establishing that they had suffered recognisable psychological injuries as a result of Fatima’s death. Having regard to what later transpired Mr Hyland’s statement that the jurisdictional hurdles raised by Malaysian Airlines had been overcome was obviously wrong.

81    On 10 October 2017 the appellants wrote to Mr Hyland again seeking copies of the pleadings so that they could make an informed decision about whether to opt out. On 11 October 2017 Mr Hyland sent a letter to the appellants attaching a copy of the pleadings and informed the appellants that a conference had been arranged with Mr Rowe of counsel on 16 November 2017 at counsel’s chambers in Sydney. The same day Mr Hyland sent another letter to the appellants which said, amongst other things:

Prior to the expiry of the limitation period we commenced class action proceedings in the Federal Court of Australia in the matter of Cassandra Gibson v Malaysian Airline Systems Berhad. You are group members in the class action and as such your position has been protected by way of the commencement of proceedings.

(Emphasis added.)

He thus reiterated his earlier advice that the appellants were class members and entitled to recover damages in the proceeding. The letter went on to describe the heads of damages to which the appellants may be entitled as class members.

82    On 15 November 2017 Mr Hyland wrote to the appellants and again said:

We confirm that you are a class member in the class action and as such are entitled to claim damages in respect to the loss of the Late Fatima Dyczynski.

The letter attached an opt out notice, and recommended that the appellants should closely read it and raise any questions with Mr Hyland. The letter said:

We stridently recommend that you do not complete and forward the Opt-out notice to the Federal Court. If you were to do so, as the two year limitation period in respect to a damages claim under the Montréal Convention 1999 has expired, you would be statute barred from pursuing an alternative damages claim against Malaysian Airlines System Berhad.

The conference with counsel

83    On 16 November 2017 Mr Rowe of counsel and Mr Hyland conferred with the appellants in Mr Rowe’s chambers in Sydney. Mr Hyland’s file note of the meeting shows that:

(a)    the appellants wished to receive advice so they could make an informed decision about whether to opt out of the class action;

(b)    counsel advised that it was likely that Malaysian Airlines would admit liability and the main issue in the case would be the quantum of the damages payable;

(c)    the purpose of the conference was to explore evidence to establish the quantum of the appellants’ claim. One aspect of the evidence explored was the possibility of the appellants recovering damages based on the loss of support they would have received through a Space Systems start-up company that Fatima had established, and for which Ms Rudhart-Dyczynski had worked as the Quality Manager;

(d)    counsel advised that the class action could be resolved by way of a global sum or through individual settlements by each class member; and

(e)    the appellants provided instructions that Fatima had wanted to apply for permanent residency in Australia. .

84    Following up from the conference, on 28 November 2017 Mr Hyland wrote to the appellants setting out the detailed information he requested that the appellants provide to establish the quantum of their claim.

85    The file note of the conference and LHD’s letter of 28 November 2017 makes it clear that Mr Hyland as a solicitor, and Mr Rowe as counsel, were both acting for the appellants in respect of their individual claim as class members.

86    On 17 December 2017, the appellants sent an email to LHD and Mr Rowe of counsel setting out their view that the reply filed by the applicant in the class action provided insufficient detail as to the negligence of Malaysian Airlines. The nine page letter contained detailed allegations of negligence and the appellants requested that the reply be amended to cite that material. On 19 December 2017 Mr Hyland responded by an email, stating amongst other things:

We refer to your email dated 17 December 2017 and thank you for your contribution. However, it is important that we place you on notice that in a class-action we take instructions from the lead Applicant and not group members, except in relation to the group member’s individual claims.

We further advise that we are aware of the matters raised by you in your email as are the Respondent. However, it would be inappropriate and unprofessional to include liability evidence to support a case in the pleadings filed and correspondence.

That brought home the consequence of LHD’s failure to obtain the appellants’ instructions as to whether to bring their claim within a class action or in an individual proceeding.

87    The appellants however continued to attempt to direct the conduct of the class action. On 20 December 2017 the appellants wrote to the primary judge, copying in Mr Hyland and counsel for Malaysian Airlines. They sought a discovery order against Malaysian Airlines in relation to alleged outages of the GPS signal over Eastern Ukraine on and before 17 July 2014. Quite correctly, the associate to the primary judge wrote to the appellants on 11 January 2018 stating that his Honour could not consider a discovery application made by a class member because the procedure under Part IVA contemplates that the representative applicant has responsibility for how the class action is run. The letter suggested that the appellants contact LHD who had carriage of the proceeding as the solicitors for the applicant on the record, or alternatively that the appellants seek independent legal advice.

The class member registration process

88    On 16 February 2018 the primary judge made class member registration and class closure orders which required class members to complete a registration form by 23 March 2018 if they wished to participate in a distribution of any amount agreed in settlement. The orders provided that any class member who neither opted out nor registered would remain a class member for all purposes and be bound by any judgment, including being entitled to participate in any award of damages made if the proceeding did not settle and proceeded to trial. Subject to any further order of the Court, any class member who did not register would not be entitled to receive a distribution from any settlement reached in the proceeding. The orders provided that a class member was deemed to have registered if the class member had engaged LHD in writing in connection with the proceeding.

89    On 20 February 2018 Mr Hyland wrote to the appellants attaching a copy of the class closure and claim preclusion orders and stating that at that stage, the appellants did not need to take any steps in response to the orders. The letter also said:

We also take this opportunity to refer to our letter of 28 November 2018 and again urge you to reconsider your decision to instruct us to not proceed to scheduling independent medical examinations on your behalf with…consultant psychiatrist.

We also urge you to provide your updated written instructions together with copies of relevant documents in respect to evidentiary issues 1-9 particularised in our letter of 28 November 2018. In the absence of your instructions and requested copies of documents, we cannot obtain evidence to support your claim for compensatory damages.

90    On 14 March 2018 LHD requested the appellants to complete and submit registration forms. It is not clear to us why that request was made as the appellants were deemed to have registered by reason of their having retained LHD in writing. On 15 March 2018 the appellants sent LHD completed registration forms and, as requested by LHD, indicated by a tick which of the options on the registration form applied in relation to their claim for Fatima’s death. The three options on the form were as follows:

(i)    The passengers destination on the contract of carriage with Malaysian Airlines was Australia, and/or;

(ii)    The passengers contract of carriage was made in Australia, where the Respondent has a place of business through which the contract was made and/or;

(iii)    Australia was the passengers’ principal and permanent place of residence at the time of loss of MH17.

The appellants ticked options (i) and (ii), and not option (iii). On the evidence that is the last occasion upon which LHD took steps to obtain information or instructions from the appellants or to provide them with any information or advice as to the performance of the Retainer.

91    Dr Dyczynski deposes that the appellants completed the registration forms in that way based upon the advice they had earlier received from LHD, and that they were not aware that there was the possibility that they may not be able to make a claim under options (i) or (ii), or that they might be able to make a claim under option (iii). The evidence indicates that LHD did not provide the appellants with appropriate advice and they were simply left to complete them without legal assistance. The evidence shows that:

(a)    in relation to option (i), Mr Hyland advised the appellants on 4 January 2017 that Fatima’s contact of carriage with Malaysian Airlines ended in Perth, and that Perth was therefore the place of destination under Art 33. That advice was wrong;

(b)    in relation to option (ii), Dr Dyczynski deposes that he purchased Fatima’s ticket online while living in Perth, and paid for it using his Australian credit card, and therefore thought the contract of carriage was made through a Malaysian Airlines office in Australia. Had Mr Hyland paid attention to the ticketing itinerary the appellants sent to him on 19 May 2016 he would have seen that, on its face, it was issued through the Malaysian Airlines office in Amsterdam;

(c)    In relation to option (iii), Dr Dyczynski deposes that he received no advice from LHD as to the test for establishing the principal and permanent place of residence of a passenger under the Convention. There is nothing in the materials to show that LHD provided any such advice to the appellants.

92    Upon completion of the class member registration process LHD filed and served a table of the registered class members. The table listed 18 class members who made claims in respect of a total of eight deceased passengers. As to the appellants, the table reflected the terms of the registration forms they had completed.

The Preliminary Questions

93    On 24 April 2018 the Court made the following orders:

1.    By 8 May 2018 the Respondent file and serve an affidavit as to any registered group members in respect of whom:

a.    the Court’s jurisdiction under Article 33 of the Montréal Convention 1999 is contested;

b.     a plea in bar or defence of accord and satisfaction is raised (Preliminary Questions).

2.    By 28 May 2018 the Applicant file and serve any evidence in response.

3.    By 18 June 2018 the Applicant file and serve any submissions in respect of the Preliminary Questions.

4.    By 23 July 2018 the Respondent file and serve any submissions in respect of the Preliminary Questions.

5.    The proceedings be listed for determination of the Preliminary Questions on 2 August 2018.

6.    The parties have general liberty to apply on 48 hours’ written notice.

94    The orders provided for the Court to determine Preliminary Questions concerning the individual claim of any registered class member in relation to whose claim Malaysian Airlines: (a) contested the Court’s jurisdiction under Art 33 of the Convention; or (b) asserted a defence of accord and satisfaction. Where Malaysian Airlines raised such an issue, that would bring forward for determination an issue or issues that was individual to that class member and not an issue common to the applicant and class members.

95    Under the unusual course which his Honour adopted it was for each registered class member, in respect of whom Malaysian Airlines raised an issue, to establish the basis of his or her claim, but the orders did not provide for notice to the affected class members. The primary judge plainly considered that there were some case management benefits in deciding the Preliminary Questions in advance of the trial on common questions, and we would respectfully agree. But in respect of those registered class members in relation to whom Malaysian Airlines raised a jurisdictional issue, it was necessary that they be given notice that the merits of their individual claim that they fell within one or more of the categories under Art 33 of the Convention would be finally determined through that procedure. The factual circumstances of their individual claims and the basis upon which each asserted that those circumstances meant that their claim fell within one or more of the categories under Art 33 were in their knowledge, not in the applicant’s knowledge.

96    Further, and more fundamentally, the applicant and class members are privies in interest of class members only in respect of the common questions of fact or law, not their individual claims. The applicant could not represent the interests of affected class members in relation to Preliminary Questions which concerned the merits of their individual claim to fall within one or more of the categories of Art 33. Her representative capacity was limited to the claims giving rise to the common claims the subject of the proceeding: Timbercorp Finance Pty Ltd (in liq) v Collins [2016] HCA 44; (2016) 259 CLR 212 (Timbercorp) at [39], [49], [53]-[54] (French CJ, Kiefel, Keane and Nettle JJ), [122] and [141]-[142] (Gordon J).

97    In accordance with the procedure set out in the orders, on 8 May 2018 Malaysian Airlines filed an affidavit of Mr Paul Freeman, a partner of Clyde & Co Singapore Pty Ltd and part of a team within Clyde & Co responsible for the global management and conduct of all MH17 claims. In respect to the appellants’ claim Mr Freeman deposed as follows:

Fatima Dyczynski

12.    In respect of Fatima Dyczynski the list of group members’ document records that:

(i)    The destination on the contract of carriage was Australia;

(ii)    The contract of carriage was made in Australia; and

(iii)    Australia was not her principal and permanent place of residence.

13.    The destination on the contract of carriage was not Australia and the contract of carriage was not made in Australia…

14.    The ticketing itinerary for Fatima Dyczynski records:

(i)    A departure point of Amsterdam;

(ii)    A final arrival point of Amsterdam; and

(iii)    An issuing agency of ‘MAS E Commerce Amsterdam NL’ which I am instructed denotes that the ticket was purchased online utilising the Respondent’s website. From information provided to me by the Respondent, which I believe to be correct, the coding ‘RLOC MH’ on the top right of the ticketing itinerary indicates that the booking was made through the Respondent’s reservation system located at its head office within Malaysia.

Mr Freeman’s affidavit made it clear that Malaysian Airlines contended that the Court did not have jurisdiction under Art 33 to decide the appellants’ claim, which question was to be determined by the Court in advance of the trial on the common issues.

98    Mr Freeman’s affidavit also raised Preliminary Questions in relation to claims made by the legal personal representatives of three other passengers killed on MH17; Mr Wilhelmus Grootscholten, Ms Olga Ioppa and Ms Elaine Teoh. His affidavit made it clear that Malaysian Airlines contended that:

(a)    the Court did not have jurisdiction to decide the claims brought by two personal representatives of Mr Grootscholten and a personal representative of Ms Ioppa because their claims did not satisfy any of the jurisdictional categories under Art 33, and also that full and final releases had been executed in respect of those claims; and

(b)    the claim by the family of Ms Teoh was time-barred, as the amendment to the class description in the class action had been made outside the two year limitation period in Art 35 and thus their claim was extinguished.

The materials are not clear as to whether LHD was retained by the legal personal representatives of Mr Grootscholten and Ms Ioppa.

99    Mr Hyland deposes that having considered Mr Freeman’s affidavit, we infer in early May 2018, he “formed the view” that the appellants did not satisfy the definition of class member in the amended statement of claim. Inexplicably, he did not say that he informed the appellants of his newly formed view that, contrary to his repeated advice, they were not class members. Indeed there is nothing in the evidence to show that Mr Hyland informed the appellants:

(a)    about the contents of Mr Freeman’s affidavit or sought their instructions about the matters raised therein;

(b)    of the procedure for determination of the Preliminary Questions such that the merits of the appellants’ claim to fall within the class description or one or more of the categories under Art 33 would be determined on a final basis prior to the trial of the common issues, with the result that they might be found ineligible to recover compensation through the class action; or

(c)    of his recently formed view that they were not class members.

The concession that the Court lacks jurisdiction to determine the appellants’ claim

100    The application for determination of the Preliminary Questions was listed for hearing before the primary judge on 2 August 2018. Mr Barry QC and Mr Rowe prepared submissions dated 20 June 2018 titled “Applicant’s Submissions on Preliminary Questions on (I) Jurisdiction in Relation to Some Individual Group Members and (II) a Plea in Bar or Defence of Accord or Satisfaction”. LHD filed the submissions on 5 July 2018.

101    Counsels’ submissions commenced by stating that following the class member registration and class closure procedure the applicant represented 13 named “claimants” who made claims in respect of the deaths of seven named passengers killed on MH17. Although the list of “claimants” included the appellants the list of deceased passengers did not include Fatima.

102    Importantly, the submissions then said:

Upon the reading of the affidavit of Paul Freeman sworn 8 May 2018 and the admission of that affidavit and the annexures to it into evidence the applicant concedes that those claimants who bring their claims under the [CACLA] in respect of the deaths of Fatima Dyczynski, Wilhelmus Theodorus, Maria Grootscholten and Olga Ioppa are persons in respect of whom the Court lacks jurisdiction under Article 33 of the [Montréal Convention].

Thus the submissions conceded the appellants’ claim under the Convention (and also the claims brought by the three registered class members who made claims in relation to the deaths of Mr Grootscholten and Ms Ioppa (the Three Additional Registered Class Members)), or at least purported to do so.

103    On 27 July 2018 counsel for Malaysian Airlines filed submissions on the Preliminary Questions. The submissions relied upon Mr Freeman’s affidavit and noted the applicant’s concession in the following terms:

In submissions filed 20 June 2018, the Applicant concedes that the claims in respect of the first three passengers [Fatima Dyczynski, Wilhelmus Grootscholten and Olga Ioppa] are claims in respect of which the Court lacks jurisdiction under Article 33 of the Convention. Accordingly, there is no need to consider the second preliminary question, and the sole passenger in respect of which the preliminary questions apply is Elaine Teoh.

104    When the application for determination of the Preliminary Questions came before the primary judge on 2 August 2018, Mr Barry and Mr Rowe appeared for the applicant, instructed by LHD. Mr Barry informed his Honour that the parties had resolved all disputes in relation to the Preliminary Questions, except in respect to the claim brought by the legal personal representatives of Ms Teoh. The hearing of the Preliminary Questions therefore did not proceed in respect to the appellants’ claim (or the claims of the Three Additional Registered Class Members), and it proceeded only in relation to the claim regarding Ms Teoh’s death. In relation to that claim Malaysian Airlines advanced an argument based upon forum non conveniens, which argument the primary judge dismissed.

105    The only orders the primary judge made on 2 August 2018 were as follows:

1    The Respondent’s application for a stay on the ground of forum non conveniens be dismissed.

 2.    No order as to costs.

3.    The matter be listed for a case management hearing on 9 August 2018 at 9.30am.

106    At this point, it is important to understand four things:

(a)    as we have said, the concession in relation to the Preliminary Questions was made by the representative applicant, but the applicant had no authority under Part IVA to concede the merits of the appellants’ individual claim that they fell within one or more of the categories under Art 33 of the Convention. The applicant was not a privy in interest of the appellants in respect to their individual claims. Her representative capacity was limited to the claims giving rise to the common claims the subject of the proceeding. Timbercorp at [39], [49], [53]-[54], [122] and [141]-[142];

(b)    None of LHD, Mr Barry or Mr Rowe had sought or obtained instructions from the appellants to make that concession. To make matters worse LHD did not even tell the appellants that they had done so;

(c)    the orders for the determination of the Preliminary Questions did not provide for notice to be given to the appellants (or other registered class members in respect of whom Malaysian Airlines raised an issue) to inform them that their individual claims might be finally determined in advance of the trial on the common issues. And no procedural steps had been taken by Malaysian Airlines upon which it could rely to establish with any certainty that the concession was made on behalf of the appellants rather than the applicant; and

(d)    no orders were made to record the determination of the Preliminary Questions or to give legal effect to the concession in relation to the appellants’ claim (or in relation to the claims of the Three Additional Registered Class Members) by, for example, making an order to answer the Preliminary Questions in Malaysian Airlines’ favour; to amend the class description; or to declare that the appellants are not class members. Instead, the parties’ lawyers just proceeded on the basis that the appellants (and the Three Additional Registered Class Members) were not class members.

107    On 14 November 2018 Dr Dyczynski sent an email to Mr Hyland seeking an update on developments in the class action. At that time he had heard nothing from LHD since March 2018. On 15 November 2018 Mr Hyland responded by email. Bizarrely, rather than telling the appellants that he had conceded that they were not class members, Mr Hyland responded to the enquiry by stating that the mediation was unsuccessful and that the proceeding would be listed for hearing in the second half of 2019. For reasons we do not understand Mr Hyland still did not tell the appellants that their claim had been formally abandoned.

108    On 27 November 2018 the primary judge made timetabling orders for the filing of evidence. His Honour listed the class action for hearing on a date to be fixed after 14 June 2019; and subsequently listed the trial to start on 26 June 2019.

The application for settlement approval

109    In the meantime, unbeknownst to the appellants, the parties engaged in settlement discussions.

110    On 14 June 2019 LHD filed an application seeking orders for Court approval of a settlement of the claims of the applicant and three class members, pursuant to s 33V of the Act. On 19 June 2019 LHD amended the application to seek approval of the settlement of the whole representative proceeding or, in the alternative, orders that the proceeding be discontinued.

111    On 26 June 2019 the settlement approval application came before the primary judge for hearing. Mr Rowe appeared for the applicant and moved for the orders on the application, as well as for orders that:

(a)    the affidavit of Mr Hyland made 13 June 2019 in support of settlement approval be treated as confidential; and

(b)    the Court dispense with the requirement to give notice to class members pursuant to s 33X(4) of the Act.

112    His Honour made orders to approve the settlement on the terms set out in the release between the parties and to dismiss the proceeding, to treat Mr Hyland’s affidavit as confidential, and to state that the requirement under s 33X(4) for notice of the proposed settlement to be given to class members had been satisfied: Gibson Settlement Approval.

113    Those orders were in the following terms:

1.    Pursuant to s 33V of the [Act], the Court approves the settlement and dismissal of these proceedings (Proceedings) on the terms set out in the Release between the parties dated 5 June 2019 (Release) appearing at Confidential Annexure MH12 to the affidavit of Michael Hyland affirmed on 13 June 2019.

2.    Pursuant to ss 37AF and 37AG(1)(a) of the [Act], until further order of the Court, in order to prevent prejudice to the proper administration of justice, the affidavit of Michael Hyland affirmed on 13 June 2019, together with its annexures, be treated as confidential, not be published or made available and not be disclosed to any person or entity except as permitted by the Release or by order of the Court.

3.    The requirement in s 33X(4) of the [Act] that notice of the settlement be given to group members is taken to have been satisfied.

4.    All previous costs orders in the proceedings be vacated.

5.    There be no order as to the costs of the proceedings.

114    We note that the settlement was approved on the terms set out in the Release, which only provided terms of settlement with the applicant and certain identified registered class members. The Release did not include terms of settlement with the appellants or the Three Additional Registered Class Members, and the settlement as approved was not one which applied to parties other than the parties named in the Release. It follows that the terms in which the orders were expressed (by approving the settlement on the terms set out in the Release) did not approve the settlement of the claims by the appellants (or the Three Additional Registered Class Members). Those claims have not been settled. All that has occurred in relation to those claims is that the concession was announced to the Court on the hearing of the Preliminary Issues and no orders have ever been made to give effect to that concession in any way.

115    The primary judge provided short reasons for the orders made. Relevantly for present purposes his Honour said (at [1]-[2], [4]):

Ordinarily, a grant of such leave requires a close consideration of the terms and context of the settlement. This is ordinarily necessary because the settlement affects the position of group members who are not before the Court. The interests of those parties may not necessarily coincide with the interests of an applicant or applicants in the proceeding. The applicants and respondents may, in a sense, be friends of the bargain. Consequently, in approving a settlement under s 33V it is accepted that the Court performs a protective function in relation to those parties who are not before the Court: Australian Securities and Investments Commission v Richards [2013] FCAFC 89 at [7]-[8] per Jacobson, Middleton and Gordon JJ.

This case is different, however. The group has always been defined in a limited way and following the opt out notices there were, so I was told, only at most 12 group members. Each of those group members has now settled with the respondent on a group basis and is party to the deed of settlement. Each is also represented by the same lawyers who represent Ms Gibson, the lead applicant. In that circumstance, there is no role for the Court’s protective function. In deciding whether leave should be granted in such a case, it is not necessary for the Court to assess the reasonableness of the settlement (leaving aside the position of infants and so on).

…

At the same time that I made the orders under s 33V, I also made orders suppressing the evidence relating to the reasonableness of the settlement (much of which was privileged). I also dispensed with the need to notify the group members of the settlement under s 33X(4).

116    In relation to the order providing for the dismissal of the class action, s 33V(1) provides that a class action may not be settled or discontinued without the approval of the Court. Section 33X(4) provides:

Unless the Court is satisfied that it is just to do so, an application for approval of a settlement under section 33V must not be determined unless notice has been given to group members.

117    As we later explain, the reasons show that the primary judge had been misled. His Honour was told that all class members were before the Court and were represented in the application by LHD and Mr Rowe when that was not the case. The Retainer between the appellants and LHD remained on foot, but LHD and counsel had conceded to Malaysian Airlines that the appellants were not class members. LHD and Mr Rowe seem to have proceeded on the basis that the concession was effective, although nobody told the appellants. The appellants were not parties to the settlement and not within the group Mr Rowe identified as those he represented, being the parties to the settlement. For the reasons we explain, the appellants were class members at the time of the settlement approval orders, and remain so. They were not given notice of the application to approve the settlement and dismiss the proceeding and they were not before the Court.

118    The appellants only became aware of the settlement after reading an online press report. On 17 July 2019 the appellants sent an email to LHD asking for details about the settlement and relevant documents. By letter on 18 July 2019 Mr Hyland responded. His letter gave no indication that he was apologetic for commencing the appellants’ claim in a court which he later concluded had no jurisdiction, doing so after the two year limitation period had run, or for his repeatedly advising the appellants that they were class members and could recover through the class action, and then abandoning their claim without notice or instructions. Instead, Mr Hyland declined to provide the information and documents the appellants requested, on the basis that the settlement was confidential, and he recommended that the appellants obtain a copy of the settlement approval orders from Austlii.

119    Mr Hyland’s letter produced an understandable and admirably restrained response from the appellants. In an email sent by Dr Dyczynski to Mr Hyland and to the primary judge on 21 July 2019 he said:

After 3 years of proceedings in the class action against Malaysian Airlines…we have a strong conviction that we have been not enough informed through both LHD Lawyers, Mr Hyland and the Federal Court of Australia in Sydney concerning our rights to receive the information about the outcome of the above cited proceedings.

The appellants again asked for information about the outcome of the proceeding and the terms of settlement approved by the Court.

120    By a letter on 22 July 2019 Mr Hyland made some limited but still inadequate disclosure about the events that had occurred. He attached some earlier correspondence from LHD to the appellants, the registration forms completed by the appellants and the ticketing itinerary. Mr Hyland tried to pass responsibility for what had transpired onto the appellants, suggesting that they had been uncooperative in providing materials to support their claim. That was a discreditable response to people who had suffered a heart-rending tragedy and then had been badly let down by their lawyers. Amongst other things, Mr Hyland said:

(a)    that the appellants had been provided with the class description.

(1)    That was correct but it missed the point, which could not have escaped him. Throughout the proceeding Mr Hyland had advised the appellants that they were class members and entitled to claim damages in respect to Fatima’s death. Further, and more fundamentally, the appellants had retained LHD to bring a proceeding on their behalf in a court of competent jurisdiction, and if they did not fall within the class description because they did not meet any of the categories under Art 33, that lay at his feet. He gave the appellants no say in the decision to bring their claim through the class action, and no say in the formulation of the initial or the amended class description. He filed the original statement of claim without even telling the appellants. He did not tell the appellants he had done so until four days prior to the expiry of the two year limitation period when it would have been very difficult for the appellants to obtain alternative legal representation and file a claim within time;

(b)    that the appellants had not accepted his recommendation to schedule independent medical examinations.

(2)    That was correct but it was irrelevant. It formed no part of the series of events which led to LHD and counsel to formally concede that the Court had no jurisdiction to hear and determine the appellants’ claim. In any event, Mr Hyland’s efforts to obtain further instructions in relation to the quantum of the appellants’ claim following the conference with Mr Rowe in November 2017 were desultory;

(c)    that the appellants had indicated in their registration forms that Fatima’s destination on her contract of carriage with Malaysian Airlines was Australia:

(i)    Mr Hyland explained the problem with the return ticket but treated that issue as if it was one exposed by Mr Freeman. He avoided the fact that pursuant to the Retainer LHD was obliged to consider and provide advice to the appellants as to the court or courts of competent jurisdiction in which the proceeding should be brought. The ticketing itinerary showed that Fatima’s flight was a return flight to Amsterdam, and if Mr Hyland had understood its significance (as he should have) he was obliged to advise the appellants to commence proceedings in the Netherlands (unless he considered some other category of jurisdiction under Art 33 meant that the case could be commenced in Australia); and

(ii)    Fatima’s contract of carriage was made in Australia where Malaysian Airlines has a place of business through which the contract was made. Mr Hyland explained that the issuing agency for the ticket was Malaysian Airlines Amsterdam office and thus the ticket was not made through its place of business in Australia. He treated that as a matter exposed by Mr Freeman when pursuant to the Retainer that was a matter appropriate for Mr Hyland to investigate and advise the appellants. The ticketing itinerary indicated on its face that the ticket was issued through the Malaysian Airlines’ office in Amsterdam.

(d)    in effect, that Mr Freeman’s affidavit showed that the appellants could not establish that there was jurisdiction to bring their claim in Australia under either of the two categories of Art 33 they had nominated.

(3)    That was so, but it failed to reflect the fact that the appellants had instructed LHD to bring their claim in a court of competent jurisdiction. It was for Mr Hyland to advise the appellants as to a court of competent jurisdiction and he advised them to bring their claim in Australia. Nor did it take into account Mr Hyland’s failure to take proper instructions as to whether or not the appellants could establish that Fatima’s principal and permanent place of residence was in Australia; and

(e)    that in the absence of the appellants establishing financial dependency on Fatima the appellants could not have succeeded in a Montréal Convention claim.

(4)    That was said despite the fact that LHD had not diligently pursued instructions as to the claim that might have been made. Before LHD formally conceded that the appellants were not class members in August 2018 Mr Hyland had not communicated with them since March 2018.

121    The letter concluded in the following terms:

The position in relation to your claim as non-passengers is that neither of you had a claim in the Australian class action as you could not be group members by definition and the effect of the Montreal Convention, because your claim was through the deceased and she could not qualify you as a group member, because she was not an Australian citizen or resident, did not purchase her ticket in Australia and Australia was not her final destination.

Further, the only damages claim with any potential was for psychiatric injury. The decision of the High Court in May this year effectively removed that head of damage from claims under the Montreal Convention.

We sympathize with you on the unsatisfactory outcome of this case and for your loss but there is nothing further that can be done.

In the circumstance that you wish to criticise our actions to His Honour Perram J you place us in a conflict of interest. We are of the view that your criticism is not justified, but if you wish to obtain further advice you should instruct other lawyers.

(Emphasis added.)

122    Breathtakingly, Mr Hyland still made no reference to nor apology for the fact that, on his own admission, he had brought the appellants’ claim in a court which he subsequently concluded (after the limitation period had run) was not competent to hear the case, had repeatedly advised them that they were class members and could recover through the class action, and he had then conceded that they were not able to bring a claim in Australia, without obtaining their instructions to do so, and without even telling them. Nor was there any sign of an apology for the insult the appellants suffered by discovering through the media, rather than from their own lawyers, that their claim in relation to the death of their beloved daughter had been abandoned without instructions.

123    But matters did not end there.

The interlocutory application dated 7 August 2019

124    On 7 August 2019 the appellants filed an interlocutory application (the appellants’ interlocutory application). The application is lengthy and plainly drafted without legal assistance. It is not easy to follow but in summary, it sought the following orders:

(a)    for discovery against Malaysian Airlines;

(b)    confirming that Fatima’s ticket was purchased in Australia and that the destination of her air travel was Australia;

(c)    for a complete copy of the affidavit of Mr Freeman and its annexures;

(d)    for Malaysian Airlines to disclose all information regarding the duplicate ticket for Fatima’s travel;

(e)    for Mr Freeman to swear an affidavit in Australia;

(f)    for the Australian Federal Police to investigate computer data relating to the credit card payment for the ticket to establish that the ticket was purchased in Australia;

(g)    to establish and disclose the individual damages payments, both individual and aggregate, made through the class action;

(h)    for the appointment of the appellants as further representative applicants in the class action; and

(i)    for the appointment of the appellants as a sub-group in the class action.

125    The essence of the application was that the appellants wished to continue the claim that had been brought in relation to Fatima’s death against Malaysian Airlines, and for that purpose they sought to be appointed either as representative applicants, or as a subgroup (see: s 33Q of the Act). At base the appellants’ complaint was that they had been told by their lawyers that they were class members in the proceeding and had operated on that basis for more than three years. They were only told by their lawyers that they were not class members after the case had settled, had the terms of the settlement withheld from them, were suspicious as to what had taken place, did not accept that they were not class members, and wished to continue their case against Malaysian Airlines.

126    The application was listed for hearing before the primary judge on 28 August 2019, which was its first return date. The appellants, who are not legally qualified, appeared in person. Mr Rowe appeared for the applicant, instructed by LHD, and Ms Catherine Gleeson of counsel appeared for Malaysian Airlines.

LHD’s and Mr Rowe’s position in the appellants’ interlocutory application

127    In the circumstances, LHD should not have acted in the appellants’ interlocutory application which included the firm advancing argument, through counsel, that the appellants could not satisfy one or more of the categories under Art 33 of the Convention and thus were not class members.

128    LHD had been retained by the appellants in January 2016 to represent the appellants’ interests in relation to the death of their daughter, and they accepted instructions to bring the appellants’ claim in a court of competent jurisdiction. Mr Hyland had advised the appellants that they could bring their claim in Australia, and that they could do so as class members in the class action. Then in May 2018, after reading Mr Freeman’s affidavit, he formed the view that the appellants were not class members because they did not fall within one or more of the categories under Art 33 of the Convention. If Mr Hyland was correct in that view, he had advised the appellants to commence their proceeding in the wrong jurisdiction and they had by then lost their rights to commence the proceeding elsewhere. That fact cannot have been lost on him. In July 2018 LHD had filed submissions which formally conceded that the Court did not have jurisdiction to hear and determine the appellants’ claim because they did not fall within one or more of the categories under Art 33.

129    But this was not known to the appellants because, inexplicably, Mr Hyland did not tell them that. Instead LHD continued to interact with the appellants as if they remained as class members.

130    Only a few weeks earlier, in his letter of 22 July, Mr Hyland had recognised that in circumstances where the appellants criticised the firm’s actions to the primary judge, the firm was placed in a conflict of interest. That the firm suffered from a conflict of interest is obvious given that: (a) LHD had advised the appellants to commence their case in this Court and subsequently concluded, after the limitation period had expired, that the Court lacked jurisdiction; and (b) LHD had filed submissions which in effect conceded that the appellants were not class members despite having repeatedly advised them that they were. The firm could no longer act for the appellants, as Mr Hyland’s 22 July letter seemed to recognise. But nor could the firm act against its former clients in the very matter in which it had been instructed by those clients. The appellants had provided instructions to LHD in relation to the facts underpinning their claim to fall within one or more of the categories under Art 33 of the Convention and the firm could not use those instructions against the appellants: Prince Jefri Bolkiah v KPMG (a firm) [1999] 2 AC 222 at 234-235 (Millett LJ). In our view it was improper for LHD to act against the appellants in the interlocutory application.

131    Mr Rowe’s position was similar. He did not have a written retainer with the appellants but he had been briefed to confer with them and provide advice regarding the quantum of their individual claim as class members, which advice included the means by which their claim might be settled through the class action. Mr Rowe plainly acted for the appellants in relation to their individual claim, and his advice can only have been provided on the basis that he considered the appellants to be class members. We assume Mr Rowe was briefed with the instructions provided by the appellants to LHD, and that they provided further confidential instructions in conference with him. Then Mr Rowe (together with Mr Barry) prepared and filed submissions which formally conceded that the Court did not have jurisdiction to hear and determine the appellants’ claim. Mr Rowe could not act against his former clients in the very matter in which he had been engaged to confer and provide advice to them. In our view it was also improper for Mr Rowe to act against the appellants in the interlocutory application.

The hearing on 28 August 2019

132    At the commencement of the hearing the primary judge observed that the appellants’ substantive contention was that they were in fact class members in the class action. His Honour had the following exchange with Dr Dyczynski:

His Honour: What you could do, procedurally, at the moment, is to chase down the rabbit hole the question of whether you two were class members or not, which seems to me is a real question. If I were you, and I were going to do that question - not the main case against Malaysian, but if I were going to pursue the question of whether I was a class member - I would get a lawyer, because this is quite complex. It involves all sorts of questions. So I can’t tell you what to do, but I can give you some friendly advice, and that would be my friendly advice to you - is, if you want to ventilate the class question, get yourself some representation, because these waters are very deep waters in relation to - and that’s not to discourage you.

DR DYCZYNSKI: Yes.

His Honour: It’s just to give you the heads up that this is not a traffic matter in a local court. This is a –

DR DYCZYNSKI: Yes. Federal court.

His Honour: Even for the people at the bar table, reopening a class action which has been settled to dispute the nature of the settlement and the class members, is a complicated legal object not for beginners - not even for experienced people. I’ve never seen one, let me put it that way. So by all means go down that path, but do yourself a favour and get someone to represent you, because you not going to do yourself any favours doing it on your own. As I say in relation to the main question, which is getting relief against Malaysian, I can’t deal with that today, and you need to file - if you want to go down that path, you need to file a case against Malaysian.

There’s a tension, also, if I can point out to you, between your contention about being a class member, where the class has settled in the proceeding is over, and bringing another case. They’re not quite consistent ideas. If you’re a member of the class, then the case - you’re part of the settlement.

DR DYCZYNSKI: Yes.

His Honour: And that has got its own complex consequences. If you’re not a member of the class, well, then different issues arise. But as I say, this is very complicated stuff. So I will sit here and listen to you, but you need to know that you are ---

DR DYCZYNSKI: Yes. I would follow this.

His Honour: Yes.

DR DYCZYNSKI: Of course. But we made a substantial discovery, may be, which can change the main pleading in the class action, and this discovery that this – that ---

His Honour: But the problem with that, again, procedurally, is that you are not the applicant in the class action.

DR DYCZYNSKI: Yes.

His Honour: Yes. Mr Rowe is the applicant in the class action. It’s not your pleading. So you can’t amend someone else’s pleading. You can amend your own pleadings, but you don’t have any pleadings because you’re not a party. So this is the kind of technicality I’m talking about.

DR DYCZYNSKI: Okay. We discussed today, if I correctly understand - if we are a class member, we have confirmation from our lawyer that we are class member. We didn’t get…from Federal Court….the lawyers, LHD Lawyers, that we are not class member.

133    The primary judge then inquired of Mr Rowe as to the applicant’s position. Mr Rowe responded by stating that the appellants were not class members. His Honour then inquired of Ms Gleeson as to Malaysian Airlines’ position, and she responded by stating that the appellants were not class members. His Honour then had the following exchange with Dr Dyczynski:

His Honour: Okay. So everyone else says that you’re not class members. You say you are.

DR DYCZYNSKI: Yes.

His Honour: I’m happy to resolve it, but we need to do it in a procedurally proper fashion.

His Honour then heard submissions from the parties on the issue of whether the appellants were class members.

134    Ms Gleeson reminded the primary judge of the application for determination of Preliminary Questions and of Mr Freeman’s affidavit in that regard. Counsel noted that the appellants were one of the parties in respect of whom Malaysian Airlines had challenged jurisdiction and that, in response to the evidence of Mr Freeman, the applicant filed submissions formally conceding that the Court had no jurisdiction. Thus the primary judge did not determine the issue of jurisdiction in relation to the appellants’ claim. Ms Gleeson submitted that Malaysian Airlines relied upon that concession in settling the proceeding, which led to the orders of the primary judge on 26 June 2019 to approve the settlement and dismiss the proceeding. Counsel submitted that the first matter that the appellants had to overcome was the formal concession that the Court had no jurisdiction to hear their claim. Although Ms Gleeson properly said that she did not know the circumstances of the concession, she presumed the concession had been made on behalf of the appellants. Ms Gleeson then took the primary judge through some of the relevant evidence of Mr Freeman.

135    The primary judge then directly asked Mr Rowe whether the appellants had provided instructions to make the concession. Most unfortunately, Mr Rowe did not give his Honour a direct answer. The following exchange took place:

His Honour: So what do I do? If I have to resolve the first question, which is whether [the appellants are group members] - I was told the Dyczynskis were out - they were withdrawn. Was that done on instructions, or ---

MR ROWE: Your Honour, it was in part in reliance on Freeman’s affidavit. We accepted the facts and truth of that, and we took the view that they could not make the claim.

His Honour: And were you - and you may not be able to answer this - were you in touch with them at all? Not you, but ---

MR ROWE: Well, I had a conference with them, your Honour.

His Honour: Okay.

MR ROWE: But that was some time ago, and I don’t think, when we had that conference, that this issue would ---

His Honour: Come up.

MR ROWE: --- Come about.

His Honour: So when did the Dyczynski’s find out that they were out, as it were?

MR ROWE: Your Honour, I can’t - could your Honour pardon me if one moment?

His Honour: Yes. Sure.

MR ROWE: Your Honour, I can’t actually give you a specific date, but your Honour will recall that, early in the piece, your Honour received some correspondence from Mr Dyczynski ---

His Honour: Dr Dyczynski.

MR ROWE: Dr Dyczynski. And, after that, my instructing solicitor informed me there was some correspondence in relation to the standing in that Court.

His Honour: Okay. So you support Ms Gleeson’s position. Presumably, you would prefer for me to go around that question altogether.

MR ROWE: Well, we rely on the affidavit of Mr Freeman, which we have no reason to doubt.

His Honour: Yes.

MR ROWE: And the annexures to that, which seem to indicate it was a return ticket.

His Honour: so I suppose what you say is, in fact, it was a correct statement. It was a correct statement. And you weren’t acting for them. It was just a correct statement about who the class composition had become by then.

MR ROWE: That’s right, they didn’t fall within the composition.

(Emphasis added.)

136    We will later set out our view of the effect of Mr Rowe’s answers. For the present it suffices to note that Mr Rowe failed to properly inform the primary judge as to what had occurred.

137    The primary judge then proceeded to formulate a procedure by which the Court would determine whether the appellants fell within the class description in paragraph seven of the amended statement of claim. Addressing Dr Dyczynski, his Honour said:

Okay. So what I was thinking is that I would resolve, today, the question of whether you are class members, on the basis of the affidavit that Dr Dyczynski has put on, dated 22 August, which deals with the emails, and also on the basis, I think, of Mr Freeman’s affidavit, which has got all the Montréal material in it, and, at the end of that process, I would resolve that and I would make a declaration in the class action that you either were class members, or that you weren’t class members. Now, if I make a declaration - if I were to make a declaration that you were class members, then things will get much more complex, because then there’s going to be all sorts of activity between these two, who will then be in disagreement with each other, and they will want to put on more material and then we’ll have to adjourn the hearing. So that’s what will happen if we go down that path.

If, on the other hand, I conclude that you’re not class members, then I think that will be the end, today, because, as I said, I can’t procedurally entertain your claim under the Montréal Convention because you’ve got to bring a court case, and there really won’t be anything else for me to do…

138    In effect, his Honour proceeded to undertake then and there, without any opportunity for the appellants to put on further evidence or make written submissions, a final determination as to the merits of the appellants’ claim to fall within one or more of the categories of Art 33 of the Montréal Convention.

139    His Honour took that course, at least in part, on the basis that he had power to open up the matter for the purpose of quelling a dispute as to whether the appellants were entitled to the benefit of the settlement. But the settlement that his Honour had earlier approved was not a global settlement; it was a settlement Malaysian Airlines reached with identified registered class members in which each family group of class members received an individual settlement amount. Further, and more importantly, the application did not seek a final determination of the merits of the appellants’ individual claim that they fell within the class description or one or more of the categories under Art 33. Their essential complaint was that they wished to be able to continue to pursue the claim made in the representative proceedings and they sought an explanation as to why their claim was not included in the settlement that had been reached.

140    On that day his Honour made a declaration that the appellants “are not class members within the meaning of paragraph seven of the amended statement of claim”, and the following day published reasons for judgment: Gibson v Malaysian Airline System Berhad (Class Membership) [2019] FCA 1399 (Gibson Class Membership). In the appeal the appellants seek an order to set aside this declaration.

THE APPEAL

141    The further amended notice of appeal alleges as follows:

Failure to deal with an issue

1.    His Honour erred in holding at [9] of the judgment that the Appellants had not suggested that they fell within paragraph 7(iii) of the amended statement of claim.

2.    His Honour ought to have held that the Appellants had raised that they fell within paragraph 7(iii) of the amended statement of claim.

Denied Procedural Fairness

3.    In circumstances where the Appellants were litigants in person his Honour ought to have informed the Appellants as to the following practice and procedure of the Federal Court:

a.    Before the Court could find that Fatima’s principal and permanent place of residence at the time of the accident was Australia the Court needed evidence in admissible form.

b.    The Court had power to adjourn the hearing on the Appellants making such an application for the purpose of filing such evidence.

4.    His Honour did not inform the Appellants as to the matters in paragraph 3(a) and 3(b) hereof.

5.    If the Court had informed the Appellants as to the matters in paragraph 3(a) and 3(b) hereof the Appellants would have made an oral application to adjourn the hearing for the purpose of filing such evidence.

6.    In the circumstances, the Appellants were denied a fair opportunity to present their case and thereby denied procedural fairness.

Finding

7.    His Honour at [9] of the judgment erred in finding that Australia was not Fatima’s principal and permanent place of residence within the meaning of the Montreal Convention.

8.    His Honour should have found that the issue of whether the Appellants fell within paragraph 7(iii) of the amended statement of claim was raised and, having been raised, his Honour ought to have informed the Appellants as to the matters in paragraph 3(a) and 3(b) hereof.

Leave to raise new ground

9.    If the Court finds that the Appellants did not raise the issue of whether they fell within paragraph 7(iii) of the amended statement of claim then the Appellants seek leave to raise on this appeal that they fell within paragraph 7(iii) of the amended statement of claim.

142    During the hearing the appellants articulated an additional ground, which may be put as follows:

The primary judge erred in making the declaration that the appellants are not group members within the meaning of paragraph 7 of the amended statement of claim because the appellants were persons with a claim against Malaysian Airlines and on whose behalf the applicant, Ms Gibson, commenced the class action, and they remained group members during the currency of the class action.

We will call this the Remaining Group Members Ground.

143    It is convenient to group the grounds of appeal under the following headings:

(a)    The Principal and Permanent Place of Residence Grounds;

(b)    The Procedural Fairness Ground; and

(c)    The Remaining Group Members Ground.

144    The principal relief the appellants seek is orders:

(a)    to set aside the declaration of the primary judge made on 28 August 2019. In substitution the appellants seek a declaration that they are class members within the meaning of paragraph seven of the amended statement of claim, or alternatively that the issue as to whether they are class members within that paragraph be remitted for hearing on the evidence filed in the appeal and any further evidence which the parties file; and

(b)    pursuant to s 33ZF, to set aside order 1 of the orders made by the primary judge on 26 June 2019, pursuant to which the Court approved the settlement under s 33V and dismissed the proceeding, but only to the extent that the proceedings are not dismissed. That is, the appellants seek to set aside the dismissal order but do not seek to disturb the settlement approved by the primary judge.

145    The appellants also submit that the Court should:

(a)    make directions for the appellants to pursue their claim, within the framework of the class action, in the alternative:

(i)    under s 33Q of the Act for the appointment of the appellants as a sub-group representatives to seek the determination of issues in relation to their claim;

(ii)    under s 33R, to allow the appellants to appear in the proceeding for determining the issues that relate only to their claim; or

(iii)    under s 33S(a), relating to the commencement and conduct of a separate proceeding by the appellants.

(b)    to the extent necessary, formally allow the appellants to withdraw the concession made by the applicant in submissions dated 20 June 2018 that the Court does not have jurisdiction to decide the appellants claim; and

(c)    award them costs.

THE PROPOSED NOTICE OF CONTENTION

146    Malaysian Airlines seeks leave to file a notice of contention out of time, which contends that the declaration of the primary judge made on 28 August 2019 should be affirmed on grounds other than those set out in the Court’s reasons. The proposed notice of contention alleges the following grounds:

1.    The Declaration made by the primary judge should be upheld because the Appellants did not suggest that their daughter’s principal and permanent place of residence was Australia.

2.    Alternatively, the Declaration made by the primary judge should be upheld where Australia was not the Appellants’ daughter’s principal and permanent place of residence.

3.    Further or alternatively, the Declaration made by the primary judge should be upheld where the Appellants have not established that Australia was the Appellants’ daughter’s principal and permanent place of residence.

147    It is appropriate to refuse leave to file the notice of contention out of time, because:

(a)    the first ground is not a notice of contention that the primary judge’s declaration should be affirmed on grounds other than those decided by his Honour. It seeks a declaration on the same basis as his Honour found; and

(b)    the second and third grounds are ill-suited to adjudication for the first time by this Court on appeal. Prior to the commencement of the appeal we informed the parties of our preliminary view that, irrespective of the outcome of the appeal, we did not consider it appropriate to determine whether Fatima’s principal and permanent place of residence at the time of the incident was in Australia. No party sought to argue against that preliminary view.

THE PROPOSED CROSS-APPEAL

148    Malaysian Airlines also seeks leave to file a cross-appeal out of time. The proposed notice of cross-appeal alleges the following grounds:

1.    If for the reasons stated by the Appellants in their Notice of Appeal the primary judge made an error (which is denied), the primary judge erred in failing to hold that at the time of the accident Australia was not the Appellants’ daughter’s principal and permanent place of residence (within the meaning of Article 33(2) of the Montréal Convention).

2.    Alternatively, if for the reasons stated by the Appellants in their Notice of Appeal the primary judge made an error (which is denied), the primary judge erred in failing to hold that at the time of the accident the Netherlands was the Appellants’ daughter’s principal and permanent place of residence (within the meaning of Article 33(2) of the Montréal Convention).

3.    Alternatively, if for the reasons stated by the Appellants in their Notice of Appeal the primary judge made an error (which is denied), the primary judge erred in failing to hold that the claim for damages made by the Appellants was extinguished on 18 July 2016 pursuant to Article 35 of the Montréal Convention.

149    For the same reasons as in relation to the notice of contention, leave to raise the first and second grounds of cross-appeal out of time should be refused. The Court informed the parties of its preliminary view that, irrespective of the outcome of the appeal, it would not decide the question of Fatima’s principal and permanent and no party sought to argue against that view.

150    In relation to the third ground of cross-appeal, that is more appropriately described as a notice of contention. It is appropriate to grant leave to extend time to file a notice of contention reflecting ground three in the proposed cross-appeal, which we will call the Limitations Contention. However, for the reasons we explain we do not consider this contention is a basis to refuse the appeal.

THE PRINCIPAL AND PERMANENT PLACE OF RESIDENCE GROUNDS

151    Under these grounds the appellants contend that the primary judge erred in holding in Gibson Class Membership (at [9]) that the appellants had not suggested that Fatima’s principal and permanent place of residence at the time of the incident was in Australia and thus that they fell within paragraph 7(iii) of the amended statement of claim. In the alternative, the appellants seek leave to advance that contention for the first time on appeal.

152    The appellants submit that the transcript of the hearing on 28 August 2019 shows that Dr Dyczynski asserted that Fatima’s principal and permanent place of residence was Australia, by stating:

(a)    that Fatima “was a student in the Netherlands, but her main household was in Australia” (T5.36); and

(b)    that Fatima’s destination was Australia as she was required by the Australian government to be in Australia to finalise and receive Australian permanent residency (T29.24-36).

The appellants further argue that the transcript shows that the issue of Fatima’s principal and permanent place of residence was before the Court because Malaysian Airlines challenged the jurisdiction of the Court in respect of the appellants’ claim “on the basis that all of the ticketing information pointed to - and also the residence of Fatima - pointed to there being no jurisdiction of this Court” (T7.5).

153    We do not accept the appellants’ contentions in this regard. A fair reading of the transcript shows that the appellants did not submit to the primary judge that Fatima’s principal and permanent place of residence at the time of the incident was in Australia. Even taking into account the fact that they were self-represented litigants, the isolated references upon which they now seek to rely cannot fairly be understood as amounting to that submission.

154    Having regard to our decision that the appeal should be upheld on another ground it is unnecessary to decide whether to grant leave for the appellants to advance this contention for the first time on appeal.

THE PROCEDURAL FAIRNESS GROUND

155    Under this ground the appellants allege that the primary judge erred because his Honour should have informed the appellants that before the Court could find that Australia was Fatima’s principal and permanent place of residence at the time of the incident, the Court needed evidence in admissible form and that the Court had the power to adjourn the hearing for the purpose of such evidence being filed.

156    The appellants submit that, once the primary judge was aware that the appellants contended that they were class members because Australia was Fatima’s principal and permanent place of residence at the relevant time, his Honour should have informed the appellants about the need to adduce evidence and about the power of the Court to adjourn the hearing so that the appellants could do so. They contend that had they been apprised of those matters they would have filed the evidence that they ultimately filed in the appeal, which sets out in detail the basis for their contention that Fatima’s principal and permanent place of residence at the relevant time was in Australia.

157    We have no difficulty in accepting that the primary judge had a duty to the appellants as self-represented litigants to ensure that they had sufficient information about the practice and procedure of the Court, so far as was reasonably practicable for the purpose of ensuring a fair trial: see Hamod v State of New South Wales [2011] NSWCA 375 at [309]-[315] (Beazley, Giles and Whealy JJA); SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; (2013) 216 FCR 445 (Allsop CJ, Robertson and Mortimer JJ).

158    But this ground is inextricably interwoven with the Principal and Permanent Place of Residence Ground and in our view it fails at the first hurdle. The appellants did not suggest before the primary judge that Australia was Fatima’s principal and permanent place of residence at the material time. The primary judge noted as much (at [9]). There was thus no requirement for his Honour to inform the appellants of the need to adduce evidence on that point nor to inform them that the hearing could be adjourned to allow them to do so. The Procedural Fairness Ground must therefore be dismissed.

159    We do not, however, wish to be taken as accepting that the appellants were accorded procedural fairness as in our view they were not. Rather, principally as a consequence of the conduct of LHD and Mr Rowe, they suffered procedural unfairness which was different to that alleged in the appeal, including that:

(a)    the concession which was purportedly made on behalf of the appellants, that they were not class members, was made without the applicant having authority to make such a concession, and without instructions from the appellants;

(b)    notwithstanding that they were class members, the appellants were not given notice of the application for orders to approve the settlement and dismiss the proceeding;

(c)    at the hearing of the appellants’ interlocutory application:

(i)    LHD and Mr Rowe did not inform the primary judge that they had conceded on behalf of the applicant that the appellants did not fall within one or more of the categories under Art 33, without the applicant having authority to make such a concession, and without their seeking instructions from the appellants; and

(ii)    LHD and Mr Rowe acted in the interlocutory application and argued that the appellants were not class members when the appellants had been their clients in respect of that very question and they had taken the appellants’ instructions in that regard; and

(d)    in deciding the appellants’ interlocutory application the primary judge finally determined the question as to whether they were class members, doing so on the spot and without further evidence or submissions, when the application did not seek a determination of that question.

THE REMAINING GROUP MEMBERS GROUND

160    Under this ground the appellants contend that the primary judge erred in making the declaration that the appellants are not class members within the class description in the amended statement of claim because the appellants were persons with a claim against Malaysian Airlines and on whose behalf the applicant commenced the class action, and they remained class members during the currency of the class action.

161    In our view this ground must be upheld.

The statutory provisions

162    The genesis of Part IVA was the report of the Australian Law Reform Commission, Grouped Proceedings in the Federal Court, Report No 46 (1988) (ALRC Report), and in the Part Parliament enacted most but not all of the ALRC recommendations. Having regard to the ALRC Report and the Attorney General’s Second Reading Speech (Australia, House of Representatives, Parliamentary Debates (Hansard), 14 November 1991, at 3174) the aims of Part IVA include improving access to justice and promoting efficiency through aggregation of claims, enabling the pursuit of legitimate claims by people who might otherwise be unable to do so because of the high cost of taking individual action.

163    Section 33C(1) of the Act is a foundational provision of the Part. It sets three threshold or ‘gateway’ requirements for commencement of a class action, as follows:

Subject to this Part, where:

(a)    7 or more persons have claims against the same person; and

(b)     the claims of all those persons are in respect of, or arise out of, the same similar or related circumstances; and

(c)    the claims of all those persons give rise to a substantial common issue of law or fact;

a proceeding may be commenced by one or more of those persons as representing some or all of them.

164    Parliament did not intend these requirements to be onerous. The ALRC Report considered and rejected the certification regime that applies in the US Federal Court (see: US Federal Rules of Civil Procedure, Rule 23(c)(1)) and instead Parliament chose to regulate which claims may proceed to trial by a class action through ss 33C and 33H, and through “declassing” provisions such as ss 33L, 33M and 33N.

165    From the commencement of the Part, consistently with the evident legislative purpose, s 33C has been broadly construed. In Wong v Silkfield Pty Ltd [1999] HCA 48; (1999) 199 CLR 255 (Wong) at [12] the High Court (Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ) said that Part IVA represented an attempt to resolve issues which had bedevilled “old style” representative procedures over many years. In relation to s 33C(1) the plurality said (at [28], [30]):

Clearly, the purpose of the enactment of Pt IVA was not to narrow access to the new form of representative proceedings beyond that which applied under regimes considered in cases such as Carnie. This suggests that, when used to identify the threshold requirements of s 33C(l), “substantial” does not indicate that which is “large” or “of special significance” or would “have a major impact on the ... litigation” but, rather, is directed to issues which are “real or of substance”.

...

It was not to the point that, in the final resolution of the litigation, this might not prove to be the “major” or “core” issue. It was not necessary to show that litigation of this common issue would be likely to resolve wholly, or to any significant degree, the claims of all Group Members.

166    It is important to understand that the criteria under s 33C(1) are ‘gateway’ matters which must be satisfied at the commencement of a class action. The provision is concerned with the commencement not the subsequent conduct of the litigation, and the “claims” to which it refers must have an existence prior to and separately from the commencement of the class action: Wong at [26]; Bright v Femcare Ltd [2002] FCAFC 243; (2002) 195 ALR 574 (Bright) at [10] (Lindgren J), [124] (Kiefel J as the Chief Justice then was). As Lindgren J explained in one of the earliest cases, Australian Competition and Consumer Commission v Giraffe World Australia Pty Ltd [1998] FCA 819; (1998) 84 FCR 512 at 523, the word “claims” in s 33C(1)(a):

…denotes that they have an existence independent of, an antecedent to, the commencement of the proceeding, since it is only if seven or more persons have claims against the same person that a proceeding under Pt IVA may be commenced by one or more of them.

Further, as his Honour also noted, s 33C(1)(a) does not speak of a right or entitlement to relief; that is a matter which cannot be known until a final hearing.

167    In Silkfield Pty Ltd v Wong [1998] FCA 1488; (1998) 90 FCR 152 (Silkfield) at 156, Foster J (in dissent but approved by the High Court in Wong) described s 33C as providing “a very wide gateway for the commencement of representative proceedings.” In King v GIO Australia Holdings Limited [2000] FCA 617; (2000) 100 FCR 209 (King) Moore J said (at [34]-[35]) that “the word “claim” is not to be viewed narrowly” and is not a reference to the causes of action in the class action. In Bray v F Hoffmann-La Roche Ltd [2003] FCAFC 153; (2003) 130 FCR 317, Carr and Finkelstein JJ (at [113] and [245] respectively) also held that “claim” is not a reference to the cause of action or remedy sought in the action and instead means the facts which give rise to the action and the legal basis of the action. In Allphones Retail Pty Ltd v Weimann [2009] FCAFC 135 at [80] Tracey and McKerracher JJ said that the term “claims” in s 33C is to be given a “wide meaning”.

168    The word “claims” in s 33C is a reference to the existence of facts, circumstances and legal rights antecedent to, and in that sense separate from, the class action. While the “claims” must be of a type which is recognisable at law, the mere fact that they ultimately do not succeed at trial does not mean that they do not have that character at the commencement of the action: King at [40]. Unless the “claims” are not made in good faith or otherwise constitute abuse of process, uncertainty as to whether they will ultimately be made out does not mean that they fall outside the meaning of s 33C: Femcare Ltd v Bright [2000] FCA 512; (2000) 100 FCR 331 (Femcare) at [93] (Black CJ, Sackville and Emmett JJ). Thus, to say that a class member has a “claim” is not to say that the person has a right or entitlement to relief; but rather that there exists facts, circumstances and legal rights anterior to and independent of the class action, which may ground a right or entitlement to relief when that person’s claim is ultimately heard and determined by the Court.

169    Section 33H provides:

(1)    An application commencing a representative proceeding, or a document filed in support of such an application, must, in addition to any other matters required to be included:

(a)    describe or otherwise identify the group members to whom the proceeding relates; and

(b)    specify the nature of the claims made on behalf of the group members and the relief claimed; and

(c)    specify the questions of law or fact common to the claims of the group members.

(2)    In describing or otherwise identifying group members for the purposes of subsection (1), it is not necessary to name, or specify the number of, the group members.

170    This provision supports s 33C(1) because it facilitates an assessment by the Court about whether the specified threshold requirements have been satisfied: Bright at [126] (Kiefel J); Ethicon Sàrl v Gill [2018] FCAFC 137; (2018) 264 FCR 394 (Ethicon Sàrl) at [7] (Allsop CJ, Murphy and Lee JJ). It also serves the purpose of enabling each class member to ascertain whether he or she is a member of the class, and to decide whether or not to opt out of the class action pursuant to s 33J: Petrusevki v Bulldogs Rugby League Ltd [2003] FCA 61 at [20]-[22] (Sackville J).

171    Through the description of the class in the originating application or the statement of claim it must be possible to identify with certainty the members of the class (although it is not necessary to name them or specify their number). As the Full Court said in Ethicon Sàrl at [37]:

Certainty of composition allows the Court to deal with the class when necessary for the purposes of the Part. For example, s 33J (affording the right to opt out); s 33L (identifying where there are less than seven group members); s 33Q (making orders as to the determination of issues where not all issues are common); s 33R (making orders as to individual issues); s 33S (making directions relating to the commencement of further proceedings by group members); s 33T (considering applications by group members as to adequacy of representation); s 33X (giving notice to group members of certain matters); and s 33ZB (making orders binding group members).

172    The “declassing” provisions such as 33L (where there are fewer than seven members), s 33M (excessive costs of distribution) and s 33N (where it is in the interests of justice to declass the proceeding) only come into play after the threshold requirements of ss 33C and 33H have been met and the proceeding commenced: Wong at [35] (approving the remarks of Foster J in dissent in Silkfield at 156).

The position at commencement of the class action

173    The primary judge accepted that the appellants fell within the class description at the time the action was commenced: Gibson Class Membership at [15]. There is no challenge to that finding in the appeal. In any event, in our respectful view his Honour was correct in so finding.

174    The class description in the statement of claim when the class action was commenced was as follows:

The group members are:

a.    residents of Australia who are the legal representatives of a passenger who was killed on MH17; or

b.    not being resident in Australia, who are the legal representatives of a passenger who was killed on MH17 and express the desire to take the benefit of the action (Civil Aviation (Carrier’s Liability) Act 1959 (Cth), Section 9D(6)(b)).

We consider the appellants satisfied the first limb of the description.

175    The question is whether something happened thereafter which meant that the appellants ceased to be class members. We agree with the observations of Lee J (at [336]-[337]) as to the various ways in which a person who is a class member may cease to be such.

176    Putting to one side the Limitations Contention made by Malaysian Airlines, the respondents contend that the appellants ceased to be class members on two grounds, namely:

(a)    on 2 May 2017 when the class description was amended, as they did not fall within it - as the primary judge held in Gibson Class Membership at [15]; and

(b)    on 2 August 2018 on the return date of the application for determination of the Preliminary Questions, as a result of the concession made by the applicant in submissions filed 5 July 2018.

We will deal with these contentions in turn.

Did the appellants cease to be class members as a result of the amendment of the class description?

177    A class description is the usual method by which a class action describes or otherwise identifies the class members to whom the proceeding relates, as required by s 33H. An amendment to a class description will therefore usually have the effect of altering the composition of the class, either by augmenting it (adding persons to the class) or reducing it (by excluding persons from the class who were class members up to that point).

178    In the present case the amendment to the class description did not augment the class (as the primary judge noted in Gibson No 2 at [33]). Instead it operated to reduce the class by excluding persons who could not possibly meet the jurisdictional requirements of Art 33 of the Convention. The amended class description provided as follows:

The group members are personal representatives of passengers:

(i)    Whose destination on the contract of carriage was Australia;

(ii)    Whose contract of carriage was made in Australia where the Respondent has a place of business through which the contract was made; or

(iii)    Where Australia was the passenger’s principal and permanent place of residence at the time of the accident and to or from which the Respondent operated services on its own or using another carrier’s aircraft by commercial agreement and from which the Respondent conducts its business or carriage of passengers from premises leased or owned by the Respondent (or other carrier).

179    Before us the respondents contend that the appellants do not satisfy any of subparagraphs (i), (ii) or (iii) of the class description. In relation to the first two subparagraphs:

(a)    for the appellants’ claim to fall within subparagraph (i), the destination on Fatima’s ticket was required to be Australia. As we have said, Fatima held a return ticket to Amsterdam. The appellants do not raise any issue with the primary judge’s finding that the return ticket meant that they did not fall within subparagraph (i) of the class description;

(b)    for the appellants’ claim to fall within subparagraph (ii), the contract of carriage for the flight had to be made through a Malaysian Airlines office in Australia. The primary judge found that the ticket was purchased through Malaysian Airlines’ Amsterdam office. The appellants do not raise any issue with the primary judge’s finding in this regard.

180    Turning then to subparagraph (iii) of the class description, it is uncontentious that Malaysian Airlines operated air services to and from Australia. The balance of subparagraph (iii) provides that for a person to be a class member he or she must be the personal representative of a passenger whose principal and permanent place of residence at the time of the accident was in Australia.

181    In the appeal the appellants filed a raft of affidavits aimed at showing that Australia was Fatima’s principal and permanent place of residence at the time that MH17 was shot down. Malaysian Airlines filed affidavits aimed at showing that it was not. As we have said, s 33C(1) provides that for a person to have a claim it is not necessary for the person to establish a right or entitlement to relief. Plainly the appellants make such a claim. They do so on the basis of evidence as to the long term plans that Fatima had to live permanently in Australia and the steps that she had taken to give effect to those plans, including seeking permanent residency and securing a research position at the University of Western Australia. They rely upon steps that had been taken to set up her home in Perth as her permanent place of residence and that they had purchased an expensive car for Fatima to be used by her in Perth.

182    In our view there exist facts, circumstances and legal rights, anterior to and separately from the class action, which may ground the appellants having a right or entitlement to relief under the relevant category under Art 33 when the appellants’ claim is ultimately determined, and thus the appellants fall within subparagraph (iii) of the class description. The fact that they may not succeed at trial in showing that they fall within subparagraph (iii) does not mean that they do not have a bona fide claim to do so. Thus the appellants were class members when the class action was commenced and they remained class members after the amendment to the class description. In our respectful view the primary judge erred in concluding that they are not.

183    In arguing that the primary judge did not fall into error the respondents submit that the appellants did not contend before the primary judge that Fatima’s principal and permanent place of residence was in Australia. There are several answers to that.

184    First, and most fundamentally, the hearing on 28 August 2019 was the first return date of the appellants’ interlocutory application. The application did not seek any order for a final determination of the merits of the appellants’ claim to fall within one or more of the categories under Art 33 of the Convention and thus the class description. The appellants sought orders for their appointment as representative applicants or as a subgroup in the class action; that is, they sought orders for the continuation of the class action so that they could continue to press their claim against Malaysian Airlines. Nor did the appellants expressly accept the primary judge’s proposal for the adoption of a procedure whereby their rights would be finally determined at that hearing.

185    The transcript of the hearing on 28 August 2019 shows that the primary judge was attentive to the fact that the appellants were self-represented, and his Honour gave Dr Dyczynski some “friendly advice” that they should obtain legal representation. But when the appellants did not do so the primary judge proceeded to finally determine the merits of their claim to fall within the class description, on the spot and without further evidence and submissions, when that was not what the application sought. While we have little doubt that the primary judge would not have taken that course had LHD or Mr Rowe given him the full picture in relation to the appellants and their dealings with LHD, error is demonstrated by making the declaration in such circumstances.

186    Second, in our view it was improper for LHD and Mr Rowe to act in the appellants’ interlocutory application, to oppose the orders the appellants sought and to argue that they are not class members. Doing so was fundamentally unfair to the appellants when LHD and Mr Rowe had acted for them in relation to their individual claim and had taken or been briefed with their instructions as to the basis of their claim to class membership. Neither LHD nor Mr Rowe brought this to the primary judge’s attention, and Mr Rowe incorrectly told the primary judge that they did not act for the appellants.

187    Third, the appellants claimed to be registered class members who had not been informed about the settlement of the class action, and they sought orders for more information about the settlement including the damages payments, both individual and aggregate, made to class members. Neither Malaysian Airlines nor Ms Gibson sought to argue that the appellants had been informed of the settlement.

188    The settlement approval hearing proceeded on the basis of Mr Rowe’s submission that all class members were before the Court, all of whom were represented by LHD, and all of whom had provided individual instructions to settle. His Honour’s understanding that the proposed settlement only concerned the interests of identified registered class members who were all before the Court, was material to the orders to approve the settlement and dismiss the proceeding. That can be seen at various points in the transcript where:

(a)    in response to an observation by the primary judge that the basis for dispensing with notice to registered class members of the proposed settlement was that they were all “in front of the court”, Mr Rowe indicated that it was (at T2-42);

(b)    in response to an observation by the primary judge that the usual considerations requiring notice of a proposed settlement did not arise because they were driven by the need to ensure that registered class members who are not before the Court had not been “sailed down the river”, Mr Rowe answered “That’s right, your Honour” (at T3-19);

(c)    in response to an observation by the primary judge that there were no class members who were not directly involved in the settlement or prejudiced by the settlement, Mr Rowe concurred (at T4-10); and

(d)    Mr Rowe said that the evidence shows that the settlement “covers all the [registered class members], all have settled, all have signed, all have given instructions to settle” (at T4-24).

It can also be seen in the primary judge’s reasons, which we have excerpted at [115] above.

189    As we have noted, the settlement did not relate to all registered class members. The appellants continued to be registered class members and they were not given notice of the proposed settlement or the proposed order to dismiss the proceeding. They were thus denied the opportunity to object to the proposed orders to approve the settlement and dismiss the proceeding.

190    Contrary to what the primary judge was told, the appellants had, in fact, been “sailed down the river” by LHD, Mr Barry and Mr Rowe effectively abandoning their claim, when the applicant did not have authority under Part IVA to make such a concession and when they had not sought or obtained instructions from the appellants to make the concession. As Mr Barry ultimately accepted before us, the concession was intended to affect the appellants’ rights. The primary judge was told none of that, and in the circumstance his Honour’s confidence that there was no requirement for the Court to protect class members’ interests was erroneous. The true position was that it was not ‘just’ pursuant to s 33X(4) of the Act to dispense with the requirement to give notice of the proposed settlement to class members.

191    The terms of the orders approving the settlement and dismissing the proceeding reflected what the primary judge was told, namely that all class members were before the Court and were represented in the settlement approval application by LHD and counsel. Thus his Honour decided to treat the requirement under s 33X(4) to notify class members of the proposed settlement as having been satisfied. In that respect his Honour was led to a mistaken conclusion by Mr Rowe. To the extent that the position was joined in by Malaysian Airlines, it did so without having taken steps in reliance upon the concession to formalise the removal of the appellants from the class (or for that matter to formalise the removal of the Three Additional Registered Class Members).

192    The respondents did not advance the dismissal order itself as a reason why the appeal should not succeed. Implicit in that position is a recognition that the orders dismissing the proceeding could not stand if they had adverse consequences for class members who were not notified of the application.

Did the appellants cease to be class members as a result of the concession?

193    As we have said, the orders for determination of Preliminary Questions provided that where Malaysian Airlines contested the Court’s jurisdiction under Art 33 of the Convention or asserted a defence of accord and satisfaction in relation to any registered class member, that would bring forward for determination an issue or issues that was individual to that class member and not common to the class.

194    Malaysian Airlines filed Mr Freeman’s affidavit on 8 May 2018, through which it contested the Court’s jurisdiction in relation to the appellants’ claim and that of the Three Additional Registered Class Members. Mr Hyland deposes that upon reading Mr Freeman’s affidavit, we infer in early May 2018, he formed the view that the appellants were not class members. On 5 July 2018 LHD filed the submissions prepared by Mr Barry and Mr Rowe which stated that, upon the reading of Mr Freeman’s affidavit, the applicant conceded that the Court lacked jurisdiction under Art 33 of the Convention in respect of the appellants’ claim (and also in respect of the claims of the Three Additional Registered Class Members).

195    On 2 August 2018 the application for determination of the Preliminary Questions came before the primary judge for hearing and Mr Barry, who appeared with Mr Rowe for the applicant, informed his Honour that the parties had resolved all disputes in relation to the Preliminary Questions, except in respect to the claim brought by the legal personal representatives of Ms Teoh. The parties did not though seek orders to determine the Preliminary Questions, nor to amend the class description or to declare that the appellants (and the Three Additional Registered Class Members) are not class members.

196    Malaysian Airlines argues that having regard to the terms of the Retainer and the correspondence between LHD and the appellants there can be no doubt that LHD were retained by and acted on behalf of the appellants as registered group members in respect of the Preliminary Questions. It contends that the appellants are therefore bound by the conduct of their counsel before the primary judge, and thus they ceased to be class members because their counsel had conceded such.

197    We do not accept the contention that the appellants should be bound by the concession, such that they have lost their right to bring a claim for damages against Malaysian Airlines.

198    Primarily that is because neither of the parties took any step to give legal effect to the concession by, for example, seeking an order; to answer the Preliminary Questions in Malaysian Airlines’ favour; to amend the class description; or to declare that the appellants are not class members. Instead, they simply proceeded on the basis that the appellants (and the Three Additional Registered Class Members) were no longer class members. It should have been clear to the parties that the concession could not of itself be determinative of whether the appellants are class members nor finally determine their claim, and the orders made on 2 August 2018 did not have that effect. Thus, the concession did not have the effect that the appellants ceased to be class members.

199    Further, as we have indicated, a range of other matters show that the concession could not provide a proper foundation for a conclusion that the appellants have ceased to be class members.

200    First, the concession was expressed as being made by the applicant. Mr Barry initially submitted that in making the concession counsel was acting for the applicant and putting a submission as to jurisdiction, not acting on behalf of the relevant class members. But, as Mr Barry ultimately accepted, the concession was intended to affect the appellants’ rights (and the same must be true of the rights of the Three Additional Registered Class Members). That must be so because the purpose of the Preliminary Questions was to finally determine the merits of the affected class members’ individual claims that they fell within one or more of the categories under Art 33 of the Convention, such that the claim could be brought in Australia.

201    The applicant however had no authority under Part IVA to make a concession in relation to the appellants’ individual claim. The applicant and the appellants were not privies in interest in respect of the merits of the appellants’ individual claim to fall within one or more of the categories under Art 33 of the Convention. The applicant’s representative capacity is limited to the claims giving rise to the common claims the subject of the proceeding: Timbercorp at [39], [49], [53]-[54], [122] and [141]-[142].

202    Nor is there any substance in Mr Barry’s submission that in making the concession counsel was acting for the applicant and putting a submission as to jurisdiction. A momentary consideration of that submission exposes its fundamental flaw. The concession was made on the express basis of factual matters stated in the affidavit of Mr Freeman, Malaysian Airlines’ solicitor, and on the basis that the appellants’ claim was confined to claims under subparagraphs (i) and (ii) of the class description. It was impossible to conclude that the matters stated in the affidavit of Mr Freeman could not be disputed, and that the appellants could not make a claim under subparagraph (iii) of the class description without taking instructions from the appellants. The issue of jurisdiction raised by the Preliminary Questions was an issue of subject matter jurisdiction which was inevitably bound up in the particular facts of the appellants’ claim and required a factual enquiry. It did not turn upon a question of law. Whether the Court had jurisdiction to finally determine the merits of the appellants’ individual claim to fall within one or more of the categories under Art 33 was inevitably bound up in the evidence that the appellants could adduce in order to bring themselves within that subject matter jurisdiction. The concession by the applicant was made beyond authority.

203    Second, LHD and counsel could only properly make the concession if they obtained the appellants’ instructions to do so. They did not do so.

204    Third, it was necessary to give the appellants notice that a Preliminary Question in relation to the merits of their individual claim to fall within one or more of the categories under Art 33 was to be determined in advance of the trial on the common issues. The particular factual circumstances underpinning the appellants’ claim in that regard were in their knowledge, not the applicant’s knowledge. Section 33X(5) of the Act provides that the Court may at any stage order that notice of any matter be given to a class member. The principal purpose of such notice is to ensure that class members can make informed decisions concerning their rights: Melbourne City Investments Pty Ltd v Treasury Wine Estates Limited [2017] FCAFC 98; (2012) 252 FCR 1 at [88] (Jagot, Yates and Murphy JJ). Here the Preliminary Questions provided for the acceleration of the final determination of the merits of each affected class member’s individual claim that he or she fell within one or more of the categories under Art 33; such that the merits of the claim would be decided in advance of the determination of the common questions.

205    Given what would be finally determined through the Preliminary Questions, and that:

(a)    class members had been informed in the opt out notice that the applicant would bring the proceeding on the class members’ behalf until the Court determined the common questions;

(b)    the facts or allegations underpinning each affected class member’s individual claim to fall within one or more of the categories under Art 33 was in his or her knowledge; and

(c)    the applicant did not have authority in her representative capacity to represent affected class members’ interests in respect of their individual claims,

affected class members were entitled to be heard. This was a paradigm example where class members should have been given notice.

206    The materials show that LHD did not tell the appellants anything about the procedure for determination of the Preliminary Questions, and the appellants had no idea that a question as to whether they could bring their claim in Australia was being brought forward so as to be finally determined, ahead of the trial of the common issues.

207    We mean no criticism of the primary judge for not ordering that class members be given notice of the procedure for determination of the Preliminary Questions. There is no evidence before us as to why that procedure was adopted, it appears to have been by consent, and there is no material to show what his Honour was told by the parties. It may be that his Honour was told that LHD acted for each of the registered class members and there was thus no requirement for notice because LHD represented their interests. We do not know.

208    But if his Honour was told that LHD represented the appellants’ interests in relation to the Preliminary Questions, the firm completely failed to do so. LHD had been retained by the appellants and was in a solicitor-client relationship with them. It had a fiduciary duty to act in the appellants’ interests, as well as common law duties and contractual obligations: Maguire v Makaronis [1997] HCA 23; (1997) 188 CLR 449; at 463 (Brennan CJ, Gaudron, McHugh and Gummow JJ). In the circumstances, LHD was obliged to inform the appellants of the contents of Mr Freeman’s affidavit insofar as it related to them, to seek their instructions in that regard and to advise them as to the appropriate action, to represent their interests. Most unfortunately, LHD did not tell the appellants anything about the procedure for the determination of the Preliminary Questions, did not seek their instructions in relation to the concession, and did not even tell them about the concession until after the appeal was commenced.

209    Even if LHD had not entered into a retainer with the appellants LHD would have had an obligation to give them notice of the procedure for determination of the Preliminary Questions. The scheme of Part IVA is that the applicant has the conduct of proceedings on behalf of the class members and has fiduciary obligations to them: Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507 at [40] (French CJ, Bell, Gageler and Keane JJ). The applicant’s lawyers also owe obligations to class members but how far those obligations extend is not settled. As stated in Kelly v Willmott Forests Ltd (in liquidation) (No 4) [2016] FCA 323; (2016) 335 ALR 439 at [220] and [308] per Murphy J:

…The applicant’s lawyers owe fiduciary duties to class members who are their clients and they also owe duties to class members who are not their clients. These duties may or may not be fiduciary in nature, but the applicant’s lawyers at least have a duty to act in the class members’ interests: McMullin v ICI Australia Operations Pty Ltd [1997] FCA 1426 (Wilcox J); Courtney v Medtel Pty Ltd (2002) 122 FCR 168; [2002] FCA 957 at [57] (Sackville J); King v AG Australia Holdings Ltd (formerly GIO Australia Holdings Ltd) (2002) 121 FCR 480; [2002] FCA 872 at [24], [27] (Moore J); Bray v F. Hoffman-La Roche Ltd [2003] FCA 1505 at [15] (“Bray”) (Merkel J).

…

Some authorities provide that the applicant’s lawyers owe fiduciary duties to class members who are not clients, although the decisions tend to assume this rather than analyse the issue: see McMullin; Courtney at [57]. Associate Professor Legg argues that, by reference to the established criteria, a fiduciary relationship exists between an applicant’s lawyers and class members: Legg M, “Class Action Settlements in Australia - the Need for Greater Scrutiny” (2014) 38(2) Melbourne University Law Review 590, 596. Other authorities describe the applicant lawyer’s duty as being to conduct the representative proceeding on behalf of the applicant in a way that is consistent with the interests of class members including those who are not clients: King at [24] and [27]; Bray at [15]; Dorajay Pty Ltd v Aristocrat Leisure Ltd [2009] FCA 19 at [8] (Stone J).

210    In acting for the representative applicant LHD was obliged to act consistently with the representative applicant’s fiduciary obligations to class members. Thus it was necessary for LHD to notify affected class members of the procedure for determination of the Preliminary Questions so that affected class members could decide whether and if so how to best protect their interests, including by deciding to instruct LHD to represent their individual interests if they considered that appropriate.

211    Fourth, Mr Barry submitted that in making the concession he acted on the basis of Mr Freeman’s affidavit. Mr Rowe said the same in the hearing of the appellants’ interlocutory application. But that affidavit contained the factual assertions of the solicitor for Malaysian Airlines, and before a concession could properly be made those assertions needed to be checked with the appellants, their clients, and instructions obtained. Mr Barry did not say that he had received any instructions from LHD to the effect that the appellants had accepted that the claim must be conceded. Nor did he point to any request he made of LHD to obtain instructions as to the facts or any consideration that the appellants’ claim could, for example, be made on the basis that Australia was Fatima’s principal and permanent place of residence at the time of the incident. The appellants could not provide instructions as to those matters because they were never even advised of the procedure for determination of the Preliminary Questions. Instead, counsel and LHD simply abandoned the appellants’ claim without notice to the appellants.

212    It should also be kept in mind that the only reason the appellants’ claim was burdened with the possibility that it might not succeed on the Preliminary Questions was because: (a) LHD had advised the appellants to bring their claim in Australia rather than, for example, in the Netherlands; and (b) had allowed their claim in the class action to be advanced on the basis of subparagraphs (i) and (ii) only of the class description, when the appellants did not in fact satisfy either relevant criterion, which should have been plain to Mr Hyland.

213    Mr Barry also sought to blame the appellants for what had transpired. By reference to the affidavit of Mr Hyland, counsel submitted that although the appellants were clients of LHD, the appellants had failed to provide instructions. Mr Barry argued that the appellants made no reply to Mr Hyland’s letter in February 2018 letter and said that no further instructions were received from the appellants at any time in relation to any claim that they wished to make in the proceedings. But the instructions being sought by Mr Hyland’s letter were not about the factual matters going to whether the jurisdictional basis for a claim under the Convention could be established. In any event, the evidence does not establish that the appellants were unresponsive clients who failed to provide instructions. On the contrary, the evidence shows that LHD were inattentive solicitors who had to be followed up by the appellants to find out what was happening with their claim and the performance of the Retainer.

214    Counsel also contended that their duty to the Court required “that matters not genuinely in dispute between parties to the proceedings should be agreed” and they sought to characterise the concession as such. That submission does not reflect a proper understanding of the duties of counsel when it comes to refining the issues.

215    It is true that counsel has an overriding duty to “contribute to the orderly, proper and expeditious trial of causes in our courts”: Lewis v Ogden [1984] HCA 26; (1984) 153 CLR 682 at 689 (Mason, Murphy, Wilson, Brennan and Dawson JJ) citing Saif Ali v Sydney Mitchell and Co [1980] AC 198 at 233. Counsel have an obligation to approach the discharge of their responsibilities on the basis that they are “in a relationship of intimate collaboration with the judges, as well as with the other members of the Bar, in the high task of endeavouring to make successful the service of the law to the community”: Zeims v The Prothonotary of the Supreme Court of New South Wales [1957] HCA 46; (1957) 97 CLR 279 at 298 (Kitto J).

216    The duty to confine the case to the real issues and to present the case as quickly and simply as circumstances permit and in a manner that is proportionate to the overall subject matter of the dispute was expressed in the following way by Mason CJ in Giannareli v Wraith [1988] HCA 52; (1988) 165 CLR 543 at 556-7:

The duty to the court is paramount and must be performed, even if the client gives instructions to the contrary…the course of litigation depends on the exercise by counsel of an independent discretion or judgment in the conduct and management of a case in which he has an eye, not only to his client’s success, but also to the speedy and efficient administration of justice. In selecting and limiting the number of witnesses to be called, in deciding what questions will be asked in cross-examination, what topics will be covered in address and what points of law will be raised, counsel exercises an independent judgment so that the time of the court is not taken up unnecessarily, notwithstanding that the client may wish to chase every rabbit down its burrow…in general, the litigant will be represented by a lawyer who, not being a mere agent for the litigant, exercises an independent judgment in the interests of the court.

Counsel have a duty to assist the court “by simplification and concentration and not to advance a multitude of ingenious arguments in the hope that out of ten bad points the judge would be capable of fashioning a winner”: Ashmore v Corp of Lloyd’s [1992] 2 All ER 486 at 493.

217    Thus it may be accepted that the performance of the duty to exercise an independent judgment as to the manner in which a retainer is performed is not to be confined by instructions from the client. The client does not instruct counsel as to how to undertake the professional obligations regarding the conduct of a case in court, including by confining the case where considered appropriate. Indeed, a client is not able to provide instructions that require a lawyer to fail to exercise the independent forensic judgment required to perform the obligations we have described. It would be an abuse of process for a client to seek to direct a lawyer to act contrary to those professional obligations and instead to act only at the direction of the client rather than by exercising independent professional judgment. The administration of justice by the courts depends to a considerable degree upon lawyers conforming to their obligation to exercise independent judgement as to all forensic decisions in executing the overall instructions of the client. It is for those reasons that it is said that the duty to the court is paramount and those duties must be complied with even though to do so may be contrary to the interests or wishes of the client: D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 at [111]-[113] (McHugh J). Properly understood, a client has no interest recognised by the law in being able to instruct a lawyer to act contrary to the obligation to exercise an independent forensic judgment in fulfilment of the duty to the court to do so. Modern principles of case management give effect to these duties by facilitating a collaborative approach to refining issues by eliminating vagueness, imprecision, kitchen sinks, boilerplate and dross.

218    Relatedly, “it is improper for counsel to present, even on instructions, a case which he or she regards as bound to fail because, if he or she so regards it, he or she must also regard it as unarguable”: Steindl Nominees Pty Ltd v Laghaifar [2003] QCA 157; [2003] 2 Qd R 683 at [24]. But, it is important to understand what is meant by that obligation. Where the merits of the client’s position depend upon the credibility of witnesses or an arguable point of law, it is not for the lawyer to judge the merits: Lemoto v Able Technical Pty Ltd [2005] NSWCA 153; (2005) 63 NSWLR 300 at [92(c)] (McColl JA, with whom Hodgson and Ipp JJA agreed). For that reason, a client who is advised about problems with the merits of the case is free to reject that advice and insist that the case be litigated: Ridehalgh v Horsefield [1994] Ch 205 at 234. The client can persist in asking the lawyer to perform the retainer by conducting the claim or defence. However, that right has its limits. It does not extend to allowing a client to instruct a lawyer to present an unarguable affirmative case or to provide instructions that constrain the exercise of the independent forensic judgment that all lawyers must bring to the conduct of a case.

219    All of those principles sit alongside the fundamental obligation of lawyers to carry out the instructions which they are retained to perform. When it comes to disputes, those instructions will be to sue, to defend, to mediate, to arbitrate, to conciliate, to appeal, to compromise, to enforce a judgment, to petition for bankruptcy and the like. It is not for a lawyer, holding those instructions, to decide not to carry them into effect based upon a view as to whether there is a basis to do so and thereby repudiate the terms of the lawyer’s retainer. And that is the contention that lies at the base of Mr Barry and Mr Rowe’s submission.

220    Rather, a lawyer who forms the view that there is no proper basis to carry out the instructions or no reasonably arguable position to advance must terminate the retainer on that basis. The client may then seek other advice or choose to act in person. While the retainer is on foot a lawyer has no authority to abandon it by, for example, conceding a case as happened in the present case. Further, it is not for lawyers to act without consulting and conferring with their clients (or barristers with their instructing solicitors) about the course they are proposing to take. Clients are entitled to have the proceedings explained to them. So far as circumstances allow, clients are also entitled to have their instructions obtained regarding significant aspects of carrying out the retainer and to have those views considered before lawyers perform their obligation to exercise their independent forensic judgment.

221    Applying these principles in the present case, LHD and Mr Rowe acted for the appellants in respect of their individual claim. They could not, consistently with their retainers, abandon the appellants’ claim without conferring with them and explaining what was going on. Their failure to do so fell well short of compliance with their professional obligations. Mr Barry’s position is somewhat different. He said that at the time of the concession his only retainer was for Ms Gibson, although he later acted for individual class members in the mediation of their individual claims. We nonetheless consider that he also failed to act in accordance with his professional obligations. As Mr Barry ultimately accepted, the concession was meant and intended to have consequences for the appellants’ claim. Mr Barry could only make a concession to effectively abandon the appellants’ claim if he appeared on their behalf when making the concession, and on his own account he did not. Nor does it appear that Mr Barry took steps to positively establish that the appellants had provided instructions to make the concession.

222    To make the concession with the intent and the consequence of withdrawing the appellants’ claim without knowing whether the appellants were on notice or whether they agreed to that course, was to advance a position that could not properly be put by counsel appearing for a representative applicant who had a fiduciary obligation to act in the interests of class members. The concession counsel made was based on factual matters which were in the knowledge of the appellants and not in the knowledge of the applicant, and was made when counsel and LHD had not taken instructions from the appellants as to it. Before counsel could properly make the concession it was necessary to take the appellants’ instructions as to the facts, including whether there was the possibility of a claim on the basis that Australia was Fatima’s principal and permanent place of residence at the time of the incident.

223    Mr Barry also said that he did not know that LHD did not have instructions from the appellants. In our view that contention incorrectly frames the inquiry. Counsel could not make such a fundamental concession without knowing what the position was concerning instructions from the appellant. Ignorance of the true position was not a basis for making the concession.

224    Finally, the concession could not properly provide any support for the approach the primary judge took in hearing the appellants’ interlocutory application nor the declaration his Honour made. The character of the concession and the circumstances in which it was communicated to the Court gave the appearance that LHD and counsel had acted appropriately in making the concession when they had not, and it is likely that his Honour was misled in that respect.

225    We summarised above (at [132]-[139]) the way in which his Honour came to the view that it was appropriate for him to determine the appellants’ application on the spot, including the relevant exchange between the primary judge and Mr Rowe (at [135]). In relation to Mr Rowe’s responses we note the following:

(a)    the primary judge directly asked Mr Rowe whether the concession that the Court lacked jurisdiction to determine the appellants’ claim was made on the appellants’ instructions. Mr Rowe did not provide a direct answer. Assuming Mr Rowe did not know the answer, LHD must have known and before responding to that question Mr Rowe should have obtained instructions and provided a direct answer. As we have said, the true position was that the concession was made without the applicant having authority, and without LHD or counsel seeking instructions from the appellants. And to that day the appellants had still not been informed of the concession;

(b)    the primary judge asked Mr Rowe whether the lawyers for the applicant were “in touch” with the appellants about the formal concession. Mr Rowe responded by stating that he had a conference with the appellants but, as Mr Rowe also said, that conference did not concern instructions or advice in relation to the concession. The evidence shows that the conference was in relation to establishing the quantum of the appellants’ claim;

(c)    the primary judge asked when the appellants found out that they were no longer class members in the class action. After taking instructions, we assume from LHD’s representative in the Court, Mr Rowe responded by stating that he could not give a specific date. LHD must have known that the appellants were first told that they were not class members by Mr Hyland’s letter on 22 July 2019, after the class action had already been dismissed. The true position was that the appellants had only just been told that they were not class members and they had still not been told that their claim had been formally abandoned by LHD and counsel more than a year earlier.

(d)    the primary judge noted that Mr Rowe submitted that the appellants did not meet the class description, and Mr Rowe said that the applicant relied on the affidavit of Mr Freeman which he had no reason to doubt. The following exchange then occurred:

His Honour: So I suppose what you say is, in fact, it was a correct statement…And you weren’t acting for them. It was just a correct statement about who the class composition had become by then.

MR ROWE: That’s right, they didn’t fall within the composition.

(Emphasis added.)

Thus the primary judge said that he supposed what Mr Rowe was saying was that Mr Freeman’s affidavit is correct in stating that the appellants are not class members, and that LHD and Mr Rowe were not acting for the appellants. Mr Rowe said “That’s right”. That was incorrect. LHD had acted for the appellants since early 2016 and Mr Rowe had acted for them since November 2017.

It is most unfortunate that LHD and Mr Rowe did not provide the primary judge with the full picture.

Could the orders of the primary judge finally determine whether the appellants were class members?

226    Nothing we have said should be understood as questioning the power of the primary judge to finally determine, as a preliminary question or in an interlocutory application, whether the appellants were class members because they fell within one or more of the subparagraphs in the class description. But, at the time the appellants’ application came before his Honour, the applicant in the proceeding was Ms Gibson, and the question before his Honour was, in substance, whether the settlement approval and dismissal orders were validly made. In order to bring that application the appellants did not need to show anything more than that they had bona fide claims to be class members, and in our view they did. They were interested parties with sufficient standing to complain that the class action had not been validly dismissed and, for the purposes of their application, they did not need to demonstrate that they should be finally adjudicated to be members of the class.

227    The matter came before the primary judge as an application to proceed with the class action, on the basis that the appellants continued to be class members, who had no notice of the proposed orders to approve the settlement and dismiss the proceeding. In those circumstances, the primary judge erred in finally determining the question as to whether the appellants fell within the class description when: (a) that was not what the application sought; and (b) that question could only be determined on notice to the appellants and with an opportunity for them to put on evidence following having been properly apprised of the issue for determination.

228    It follows, with respect, that the primary judge was in error in approaching the matter in the way in which he did, but as we have said, we have little doubt that his Honour would not have taken that course had LHD or Mr Rowe given him the full picture.

THE LIMITATIONS CONTENTION

229    In opposition to the applicant’s application to amend in May 2017 Malaysian Airlines submitted that leave to amend the class description should not be allowed because in the original statement of claim no class members’ claims had been pleaded which invoked a jurisdictional basis under the Convention for such claims. The original statement of claim was struck out in December 2016 and when the amended class description came into effect on 2 May 2017, the two year limitation period under Art 35 had run, with the result that the rights of class members to bring their claims for damages had been extinguished.

230    In Gibson No 2 the primary judge rejected the contention that all class members’ claims were inevitably statute barred as at 2 May 2017. His Honour found (at [36]) that it was likely, and certainly at least arguable, that persons who fell within the original impermissible class description and also within the new class description had commenced their claims within time. We would respectfully agree. But his Honour did not finally decide the question. His Honour granted leave to amend on the basis that Malaysian Airlines’ limitation argument could be made when class members’ claims were finally determined. Malaysian Airlines did not appeal.

231    Before us Malaysian Airlines advances essentially the same limitations argument as it advanced in Gibson No 2. It contends that it would be futile to grant the relief the appellants seek because their claim has been extinguished by operation of Art 35 of the Convention. It is unnecessary to decide this issue. Malaysian Airlines did not appeal from the decision in Gibson No 2 at the time, and before us it did not seek leave to appeal out of time. Its limitations contention therefore should not be accepted as a reason why the relief sought in the appeal should not be granted. The appropriate course is for that argument to remain one that Malaysian Airlines may raise in answer to the appellant’s claim when it is finally determined.

RELIEF

232    The appeal should be allowed. For the reasons we have explained we consider the following further relief is appropriate.

233    First, to deal with some procedural issues;

(a)    to the extent that the appeal concerns the orders to approve the settlement and dismiss the proceeding made by the primary judge on 26 June 2019, the time for filing the appeal be extended such that the appeal is made within time;

(b)    leave is granted to the appellants to file a further amended notice of appeal reflecting the Remaining Group Members Ground set out at [142] and [318] herein, within seven days;

(c)    leave is granted to Malaysian Airlines to file a notice of contention reflecting ground three in the draft cross appeal, within seven days; and

(d)    leave is otherwise refused to Malaysian Airlines to extend time to file and rely upon the notice of cross appeal and the notice of contention.

234    Second, the primary judge’s declaration of 28 August 2019 that the appellants “are not class members within the meaning of paragraph seven of the amended statement of claim” be set aside.

235    Third, to the extent necessary, leave is granted to the appellants to withdraw the concession made on behalf of the applicant in submissions filed 5 July 2018 that the Court lacks jurisdiction to hear and decide the appellants’ claim. This order may be unnecessary because the concession was made on behalf of the applicant, who had no authority to concede the merits of the appellants’ individual claim to fall within one or more categories under Art 33 of the Convention, and it was made without the appellants’ instructions. It was also made improperly, in the sense that LHD and counsel acted inconsistently with their professional obligations. To the extent it is necessary, it is appropriate to grant leave to withdraw the concession as it would work a grave injustice upon the appellants if Malaysian Airlines, and to the extent it may be relevant, Ms Gibson, were allowed to continue to rely on the concession.

236    It is significant that Malaysian Airlines did not assert that any real prejudice would flow to it from withdrawal of the concession, save for the fact that it would undo the finality of the orders approving the settlement and dismissing the proceeding; a matter that it did not press strongly (understandably in the circumstances). Given that Malaysian Airlines itself failed to ensure finality by seeking orders to give legal effect to the concession, by either amending the class description or seeking a declaration that the appellants were no longer class members, that is not a factor that counts strongly against allowing the concession to be withdrawn. Withdrawal of the concession will not disturb the finality of the settlement that Malaysian Airlines reached with the applicant and the other identified class members, which settlement was not global in nature, did not include the appellants, and provided for the payment of individual amounts for each family group of registered class members. For the same reason, withdrawal of the concession will not cause prejudice to the applicant and the registered class members who received compensation under the settlement.

237    It follows that the concession that was made is no barrier to the relief sought by the appellants on the appeal, and should not stand in their way in the future determination of whether their claim falls within one or more of the categories under Art 33 of the Convention, and therefore within the class description.

238    Fourth, the appellants seek an order to set aside the primary judge’s order of 26 June 2019 to dismiss the proceeding.

239    This gives rise to an issue in relation to the finality of orders made in resolution of proceedings. Achieving finality in litigation has always been an important aim of the courts because without finality “it would be impossible to carry on the business of the world”: Davidson’s Settlement Trusts (1873) LR 15 Eq 383, 386 (Lord Justice James). Achieving finality is of particular importance in class action litigation, which is often large, complex, and involving multiple parties and thousands of class members. Finality, particularly for the respondent, is an important feature of the utility of such litigation. It is appropriate to be cautious before varying or setting aside orders to approve settlement and dismiss such proceedings.

240    The aim of achieving finality must however be tempered by the nature of class action proceedings in which the applicant represents the interests of absent class members. Under Part IVA the representative party nominates him or herself as applicant, the class member is not required to consent to the appointment of the applicant and has no choice in that regard, class members may have received no legal advice as to their interests or even be aware that the case has been commenced, and class members’ claims are often an amalgam of common claims and claims which are individual to the class member. There is a tension between the desirability of achieving finality on the one hand, and fairness to class members in relation to individual claims which fall outside the scope of the applicant’s representative capacity on the other: see Legg M and Hickey S, ‘Finality and Fairness in Australian Class Action Settlements’ (2019) 41(2) Sydney Law Review 185.

241    As we have said, the appellants do not seek to interfere with Order 1 of the orders the primary judge made on 26 June 2019 to the extent that his Honour approved the settlement reached between Malaysian Airlines, the applicant and identified registered class members. The appellants only seek to set aside the dismissal of the proceeding so that they may be substituted as applicants in the proceeding.

242    In the unusual circumstances of the present case we consider it appropriate to set aside the order to dismiss the proceeding. While that will reduce the finality Malaysian Airlines has achieved, it did not strongly assert that it will suffer any real prejudice if the dismissal order is set aside. Further, Malaysian Airlines itself failed to ensure finality by seeking orders to give legal effect to the formal concession.

243    Nor will setting aside the dismissal disturb the finality of the settlement that Malaysian Airlines reached with the applicant and the class members identified in the Release, which settlement did not include the appellants in any event. Thus the interests of the applicant and the identified class members will not be prejudiced.

244    Fifth, the issues in this appeal also expose the importance of the making of an order under s 33ZB of the Act when a settlement is approved under s 33V, and in our view an order under this section is appropriate.

245    Section 33ZB provides:

33ZB    Effect of judgment

A judgment given in a representative proceeding:

(a)    must describe or otherwise identify the group members who will be affected by it; and

(b)    binds all such persons other than any person who has opted out of the proceeding under section 33J.

246    It has been described as “the pivotal provision” of Part IVA: Femcare at [25]. It ensures that class members who have not opted out are bound by the judgment of the Court, even though they are not parties to the proceeding, and also ensures that the Court takes account of the impact of a judgment on class members as part of its decision-making process: Jenkins v NZI Securities Australia Ltd [1994] FCA 678; (1994) 52 FCR 572 at 576-577 (Beaumont, Gummow and Carr JJ). It is critical that the class members to be bound by a judgment be clearly described or otherwise identified, although it is unnecessary to individually name them.

247    Judicial practice in relation to settlement approval orders in class actions has varied over time and in many cases s 33ZB orders have not been made. But in our view this case is a good example of why an order under s 33ZB should be made to accompany an order under s 33V. We respectfully agree with the observation of Lee J in Clark v National Australia Bank Limited (No 2) [2020] FCA 652 at [24] where his Honour said:

… non-party claims are “settled” not through the operation of common law principles upon dismissal of a proceeding, but through the operation of statute. The reason why the group members although non-parties are bound to the s 33V settlement order is by the making of a s 33ZB order, which means the settlement order binds group members who did not opt out.

248    In the present case the legal representatives of the applicant made a concession regarding the appellants’ individual claim to fall within one or more categories of the Convention, without having authority under Part IVA to do so and without having the appellants’ instructions. The parties proceeded on the basis that the concession was effective but they did not seek an order to amend the class description or to declare that the appellants are not class members. Then the parties reached a settlement which was limited to the applicant and identified registered class members. The settlement did not include the appellants presumably because the parties understood that they were not class members. Because no s 33ZB order was made which sufficiently described and identified the class members bound by the settlement approval and dismissal orders made the appellants’ position was left unclear. An order under s 33ZB would have addressed that lack of clarity.

249    We respectfully agree with the remarks of Lee J at [391] regarding the appropriateness of s 33ZB orders upon settlement approval and the intersection of that provision with ss 33V and 33ZF. Class members in a class action are only “bound by the determination of the claims giving rise to the common questions”, and the applicant represents class members “only with respect to the claim the subject of that proceeding, but not with respect to their individual claims”: Timbercorp at [53]-[54]. That includes common claims that are not pleaded because, as Gaudron, Gummow and Hayne JJ observed in Mobil Oil at [34], what is decided in a class action is “…the claims that are made, or could be made, against the defendant by all those in the “class” or “group” that is identified in the proceeding.”

250    The position is different in relation to class members’ individual or idiosyncratic claims. Since Timbercorp it has been settled that a judgment in representative proceedings can only bind class members in relation to the common issues of fact or law. The Victorian Court of Appeal has however drawn a distinction between the resolution of claims by judgment and through settlement. In Bendigo and Adelaide Bank Ltd v Pekell Delaire Holdings Pty Ltd [2017] VSCA 51; (2017) 118 ACSR 592 (Santamaria, Ferguson and McLeish JJA) their Honours concluded (at [56]-[58]) that, in a class action settlement, s 33ZF supplies the privity which is otherwise absent in respect of the individual claims of class members, such that a settlement may be binding on class members in respect of both common claims the subject of the proceeding and any individual claims. On that basis the Court concluded that a class action can be settled “on whatever terms the parties have agreed and the Court has approved”.

251    It is unnecessary to decide but we would respectfully take a different view. The authority of a representative applicant to represent class members’ interests is conferred by Part IVA, and the applicant and class members are only privies in interest with respect to and to the extent of those common claims which are the subject of the proceeding. The applicant represents the class members only to the extent of the common claims: Timbercorp at [39], [49], [53]-[54], [122] and [141]-[142]. In the absence of express statutory words we would not conclude that Parliament intended that, absent authorisation by class members, the applicant has authority to settle the individual or idiosyncratic claims of class members. It is relevant to note that in many class actions: (a) the applicant will know little or nothing about any claims class members have based in their particular individual or idiosyncratic circumstances; (b) class members will not be on notice that their individual or idiosyncratic claims might be settled without their instructions as part of the case based in common issues they were told about in the opt out notice; and (c) the Court asked to approve the settlement can be told little or nothing about class members’ individual or idiosyncratic claims because they are unknown to the applicant and his or her lawyers. Absent authorisation by class members it is difficult to see how an applicant may presume to deal with the individual claims of class members howsoever they arise, as distinct from the common claims which are the subject of the class action.

252    In the circumstances of the present case we consider it appropriate to now make an order under s 33ZB so that the persons bound by the Court-approved settlement are clearly identified. There is though one aspect of the s 33ZB order we propose which was not the subject of submissions, being the exclusion of the Three Additional Registered Class Members from the settlement approval order. We consider such an exclusion is appropriate in the exercise of the Court’s protective role in relation to the interests of the Three Additional Registered Class Members, and in the extraordinary circumstances of the present case. We do not suggest that LHD treated the personal representatives of Mr Grootscholten and Ms Ioppa the same way they treated the appellants. We do not know. We do however know that the formal concession made on behalf of the applicant also applied to them, and that the applicant had no authority to make that concession. It may be, however, that the personal representatives of Mr Grootscholten and Ms Ioppa gave instructions to make the concession, and if that be the case then there are no grounds for concern.

253    There is no prejudice to the parties to the settlement through such an order because the settlement was not global in nature and the only class members bound were those identified in the Release, which did not include the Three Additional Registered Class Members in any event.

254    The orders will require that the Three Additional Registered Class Members be sent a copy of these reasons, so that they can seek legal advice and then approach the Court, on notice to Malaysian Airlines if there is some application they wish to make. Whether they have any rights is a matter to be dealt with then.

255    The orders we propose will also provide the appellants with three months to consider their position with the benefit of advice from their new lawyers. If they choose to continue with the present proceeding the orders provide for them to be substituted as representative applicants and thereafter the proceeding shall be declassed pursuant to s 33N of the Act, subject to any application the Three Additional Registered Class Members may make. The relief the appellants seek is more appropriately obtained in an individual rather than a representative proceeding.

256    Sixth, in relation to costs, having regard to their success in the appeal the appellants should have their party/party costs of and associated with the appeal and their interlocutory application dated 7 August 2019. Malaysian Airlines should be ordered to pay the appellants’ party/party costs as it was wrong in arguing below that the appellants are not class members and unsuccessful in opposing the appeal.

257    In relation to costs we can presently see no basis for ordering costs against Ms Gibson personally. We doubt that she had any real interest in the appeal in circumstances where she and the identified registered class members have settled their claims and received their settlement monies. Before us Mr Barry submitted that Ms Gibson’s interest in the appeal is twofold.

258    First, that Ms Gibson did not want the settlement that had been achieved to be undone. There is no substance in that contention and it was not a basis to oppose the appeal. The appellants did not seek any order which sought to undo the settlement reached between the parties to the Release. The appellants sought an order that they be excluded from that settlement, but Ms Gibson’s position in the appeal was that they were excluded in any event because they are not class members.

259    Second, that the appeal sought an order that she pay the appellants’ costs. While the application did seek such an order, the basis for it is the alleged failures of LHD and counsel to act with appropriate professional skill and competence. It was always the case that any costs order was unlikely to be made against Ms Gibson personally. We are presently not disposed to order the Ms Gibson should bear any costs.

260    There is however a question as to whether LHD or counsel should do so, either on a party/party or indemnity basis. LHD has had an opportunity to put on evidence in the appeal but it has not had an opportunity to put on evidence or submissions in relation to costs. It is appropriate to order that LHD show cause why it should not be ordered to pay the appellants’ costs of and associated with the appeal and the appellants’ interlocutory application, on either a party/party or an indemnity basis, within 21 days. If LHD submits that counsel should contribute to any costs it is ordered to pay, counsel may file evidence and short submissions in relation to costs within a further 21 days. The appellants and Malaysian Airlines may then file short responsive submissions within 10 days thereafter.

261    To be clear in relation to Malaysian Airlines’ position, our preliminary view is that: (a) if an order is made for LHD to pay the appellants’ costs on an indemnity basis, with or without contribution from counsel, Malaysian Airlines’ obligation to pay the appellants’ party/party costs will be extinguished; and (b) if an order is made for LHD to pay the appellants’ costs on a party/party basis, with or without a contribution from counsel, Malaysian Airlines and LHD will be jointly and severally liable for those costs.

Associate:

Dated:    7 July 2020

REASONS FOR JUDGMENT

LEE J:

A    INTRODUCTION

262    The appellants, Dr and Mrs Dyczynski, suffered a calamity difficult to comprehend. Their daughter, Fatima (described by the primary judge as a promising space systems engineer) was returning from Amsterdam where she was studying, to visit her parents in Perth. Material in evidence demonstrates how eagerly and lovingly the family anticipated reuniting. But then, by a strange and terrible fate, death came to her: Fatima was a passenger on board Malaysian Airlines flight MH17, shot down over Ukraine on 17 July 2014.

263    Dr and Mrs Dyczynski appeal a declaration made by the primary judge that they were not group members in a proceeding brought pursuant to Pt IVA of the Federal Court of Australia Act 1976 (Cth) (Act) by the first respondent, Mrs Gibson, on her own behalf and on behalf of certain personal legal representatives of passengers who died following the destruction of MH17.

264    The appeal arises as a consequence of the parties below eliding an important distinction foundational to the way in which Pt IVA works. That distinction being: between the task of identifying whether a person is a group member in the class action by reference to the class definition; with the distinct concept as to whether that person’s claim has ultimate merit when the time comes for their claim to be determined (usually after a “declassing” of the class action, following an initial trial of common issues).

265    Prior to explaining why this appeal should succeed, it is useful to understand: (a) the nature of the class action; (b) the circumstances that gave rise to the primary judge making the declaration that Dr and Mrs Dyczynski were not group members (including the torturous history of the class action and the involvement in it of Dr and Mrs Dyczynski); (c) the circumstances in which the class action came to be settled; and (d) the process of reasoning by which the primary judge concluded that Dr and Mrs Dyczynski were once group members, but had ceased to be so by the time his Honour made the declaration the subject of this appeal.

B    THE CLAIMS, THE CLASS ACTION AND ITS PROCEDURAL HISTORY

266    Any liability to pay compensation in relation to the deaths of the passengers is regulated by the Convention for the Unification of Certain Rules for International Carriage by Air (Montréal, 28 May 1999) (Montréal Convention) which, by s 9B of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) (CACLA), has the force of law in Australia. The relevant cause of action for compensation arises from Art 17 of the Montréal Convention and, in Australia, may be enforced by the personal representative of the passenger: CACLA s 9D(5). The cause of action is created by Art 17 (through s 9B of the CACLA) and substitutes any other liability the carrier may have to the estate of a passenger or a passenger’s relatives: CACLA s 9D(2).

267    Any claim under Art 17 is extinguished upon the expiration of two years by Art 35:

Article 35 – Limitation of Actions

1.    The right to damages shall be extinguished if an action is not brought within a period of two years, reckoned from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped.

2.    The method of calculating that period shall be determined by the law of the court seised of the case.

268    Within this two year period, Mrs Gibson commenced the class action seeking compensation under the Montréal Convention and CACLA on her own behalf and “on behalf of the representatives of the deceased passengers”.

269    For the purposes of s 33H of the Act, which requires an applicant, among other things, to “describe or otherwise identify the group members to whom the proceeding relates”, the class was identified in the following terms:

The group members are:

a.    residents of Australia who are the legal representatives of a passenger who was killed on MH17; or

b.    not being resident in Australia, who are the legal representatives of a passenger who was killed on MH17 and express the desire to take the benefit of the action (Civil Aviation (Carrier's (sic) Liability) Act 1959 (Cth), Section 9D(6)(b)).

270    Pausing there, it is immediately apparent that one aspect of the group definition was problematic. Group members are not required to “opt-in” to a class action: this is also basal to the Pt IVA regime. Any group definition which purports to require a group member to take an active step (here, “express the desire”) to become a group member is invalid.

271    In any event, the group definition was “struck out” by the primary judge: Gibson v Malaysian Airline System Berhad [2016] FCA 1476. But this had nothing to do with the problem identified in the preceding paragraph. The rationale was that under the Montréal Convention, the entire focus is on the territorial characteristics of the passengers and not the legal representatives: Montréal Convention Art 33. It followed that the group definition pleaded would necessarily have purported to include persons who would not, on any view, have had any claim against the second respondent (Malaysian Airlines). In understanding the effect of the strike-out order, and what thereafter happened, it is necessary to bear in mind that what his Honour was doing in the strike-out application was not determining that persons who were group members had claims represented in the class action that were not arguable. Rather, his Honour determined that the group definition was drafted maladroitly so as to purport to include persons who could not have any claim at all. Leave was given to replead the group definition.

272    On 13 January 2017, the representative applicant, Mrs Gibson, took up this grant of leave and applied to amend the class definition in her statement of claim. It will be observed that this application was made outside the relevant two year period, which had expired on 18 July 2016. The form of amendment proposed on 13 January 2017 was itself defective. When the amendment application was heard on 2 May 2017, this was remedied by the substitution of a new group definition in the following terms:

7    The group members are personal representatives of passengers:

(i)    Whose destination on the contract of carriage was Australia;

(ii)    Whose contract of carriage was made in Australia where the Respondent has a place of business through which the contract was made; or

(iii)    Where Australia was the passenger’s principal and permanent place of residence at the time of the accident and to or from which the Respondent operated services on its own or using another carrier’s aircraft by commercial agreement and from which the Respondent conducts its business or carriage of passengers from premises leased or owned by the Respondent (or other carrier).

273    It was accepted by Malaysian Airlines that this cured the drafting difficulty, but the amendment was resisted on the basis the two year period provided for in Art 35 had expired “with the result that the rights of group members [had] been extinguished”. Before moving on, it is noteworthy that this submission is an example of confusing claims with the people who have the claims. Even though the initial group definition purported to include persons who had no claim, it did capture, by description, identifiable legal personal representatives who did have claims under the Montréal Convention. With regard to those persons, as is explained in detail below, upon commencement of the class action, any limitation period was suspended: see s 33ZE of the Act.

274    In any event, on 23 June 2017, the primary judge granted leave to Mrs Gibson to amend the group definition.

275    Later in 2017, after some fits and starts, the Court made orders for opt-out notices to be sent. The notices were in a form that has become common: they not only explained that group members could remain passive prior to any initial trial and yet remain within the class action, but also made clear that the class action was to proceed in the orthodox way: by an initial trial of common issues followed by determination of individual claims (or by prior settlement). The opt-out notices included the following:

8.    What class members need to do

(a)    How can you remain a class member?

If you wish to remain a class member there is nothing you need to do at the present time. The Applicant will continue to bring the proceeding on your behalf up to the point where the Court determines those questions that are common to the claims of the Applicant and the class members. However, you are invited to contact the Applicant’s lawyers, LHD Lawyers, on the number below and register as a class member so that the future notices about the class action can be sent to your preferred address.

(original emphasis)

276    It was also explained that:

Class members should note that:

(a)    in a judgment following trial, the Court will decide various factual and legal issues in respect of the claims made by the Applicant and class members. Unless those decisions are successfully appealed they bind the Applicant, class members and the Respondent. Importantly, if there are other proceedings between a class member and the Respondent, it “may be” that neither of them will be permitted to raise arguments in that proceeding which are inconsistent with a factual or legal issue decided in the class action.

(b)    in a settlement of a class action, where the settlement provides for compensation to class members it “is likely to” extinguish all rights to compensation which a class member might have against the Respondent which arise in any way out of the events or transactions which are the subject-matter of the class action.

277    As to what would happen in the event Mrs Gibson was successful at the initial trial, group members were advised:

…you will be entitled to share in the benefit of any order, judgment or settlement in favour of the Applicant and class members, although you may have to satisfy certain conditions before your entitlement arises.

278    Finally, recipients were advised that if they were unsure as to their status as group members “you should contact LHD Lawyers [the solicitors for Mrs Gibson]… or seek your own legal advice without delay”.

279    The next step of significance occurred in February 2018 when “soft closure” orders were made. This meant that unless group members who had not opted out filled out a registration form by 23 March 2018, then they would:

a.    Remain a group member for all purposes, including for the purpose of being bound by any judgment in this proceeding and being entitled to participate in any award of damages by the Court if this proceeding does not settle; but

b.    Subject to any further order of the Court, will not be entitled to receive a distribution from any settlement of this proceeding.

280    Things then changed. Rather than proceeding along the lines of the usual course foreshadowed in the opt-out notice, following opt-out, on 24 April 2018, the parties proposed to the Court orders identifying “Preliminary Questions” in relation to the claim of any registered group member in respect of whom: (a) the “Court’s jurisdiction under Art 33 of the Montréal Convention is contested”; and (b) a plea “in bar or defence of accord and satisfaction is raised” (Preliminary Questions). Pursuant to orders made (evidently by consent), affidavit evidence was then filed in relation to the Preliminary Questions by the parties (but not the affected group members). It will be necessary to come back to these Preliminary Questions and the relevant evidence in detail below.

281    The contested hearing of the Preliminary Questions did not take place and the proceeding was subsequently referred to mediation. On 27 November 2018, orders were made in Chambers to ready the applicant’s case for a final hearing at an initial trial, which was eventually listed in June 2019.

282    On the day previously listed for the commencement of the initial trial (26 June 2019), a s 33V application was made seeking the approval of a settlement. What occurred at that hearing is important and will be recounted in detail below, but for present purposes it is sufficient to note that the settlement was approved.

283    That would have been the end of the class action save for the application subsequently made by Dr and Mrs Dyczynski when they became aware the class action had been settled. Before coming to that application, it is necessary to say something more specific about the dealings during the course of the class action between the legal representatives of Mrs Gibson and Dr and Mrs Dyczynski.

C    DR AND MRS DYCZYNSKI AND THE CLASS ACTION

284    On 16 January 2017, Dr and Mrs Dyczynski signed a retainer agreement with a lawyer from the United States, Mr Jerry Skinner, who was acting on behalf of LHD.

285    The retainer provided that LHD had been instructed to:

[c]omplete a claim for damages and compensation in a court or courts of competent jurisdiction where all the culpable parties responsible for the destruction of MH17 where they may be subject to jurisdiction.

286    Initially it was contemplated that an ordinary inter partes proceeding would be commenced by Dr and Mrs Dyczynski and, by May 2016, Dr and Mrs Dyczynski had provided to LHD various documents relevant to the proposed claim and had attended a conference with Mr Skinner and Mr Michael Hyland of LHD.

287    On 28 June 2016, Dr Dyczynski sent an email to LHD requesting an update on the proposed claim and, in response, was first told by LHD that a class action would be filed.

288    The evidence reveals that Dr Dyczynski was an involved client who was initially in regular communication with his solicitors asking for updates and clarification of various matters. LHD confirmed on a number of occasions that Dr and Mrs Dyczynski were group members – including after the change in the group definition referred to above. For example, on 15 November 2017, the following letter was received by Dr Dyczynski:

Dear Dr Dyczynski,

RE: THE LATE FATIMA DYCZYNSKI

We refer to our recent letter of advice pertaining to the Federal Court class action in which we are instructed by the lead applicant, Cassandra Gibson.

We confirm that you are a class member in the class action and as such are entitled to claim damages in respect to the loss of the Late Fatima Dyczynski.

Attached are copies of Federal Court orders made on 3 October 2017 and an Opt out Notice.

Please closely read the Opt out Notice. Any questions you have concerning matters contained in the Opt out Notice should not be directed to the Federal Court of Australia but in the alternative should be directed to the writer.

We stridently recommend that you do not complete and forward the Opt out notice to the Federal Court. If you were to do so, as the two year limitation period in respect to a damages claim under the Montréal Convention 1999 has expired, you would be statute barred from pursuing an alternative damages claim against Malaysian Airlines System Berhad.

Finally, should you have any enquiries in relation to this letter or its attachments please direct contact the writer.

Yours faithfully

LHD LAWYERS

289    Plainly on the basis of what had been conveyed to Dr and Mrs Dyczynski on a number of occasions, including on 15 November 2017, they were entitled to believe that their solicitors considered that they remained group members. On 16 November 2017, Dr Dyczynski attended a conference with junior counsel retained, Mr John Rowe, in his chambers, together with their solicitor (being Mr Rowe’s instructing solicitor) Mr Hyland. We were told during the appeal that this conference related to obtaining instructions as to quantum, although the file note of the solicitor in evidence suggests that the conference ranged more broadly. In any event, the meeting proceeded on the basis that Dr and Mrs Dyczynski were group members whose interests were being represented by LHD.

290    Following that conference, on 28 November 2017 (and despite a number of earlier requests), the pleadings were provided to Dr Dyczynski. A little over a fortnight later, on 15 December 2017, Dr Dyczynski received another letter from LHD which, among other things, recommended that Dr and Mrs Dyczynski not file an opt-out notice because the applicable limitation period under the Montréal Convention had expired and they “would be prohibited from pursuing an individual claim against Malaysian Airlines”. This advice was repeated a few days later.

291    Following the “soft closure” orders described above, on 14 March 2018, Dr and Mrs Dyczynski were invited by LHD to complete a registration form for group members. They later provided a registration form to LHD in accordance with that request. Dr Dyczynski contends that on the basis of earlier advice given by LHD that Fatima’s contract of carriage identified Perth as the “place of destination”, Dr Dyczynski ticked the following boxes on the registration form sent to them as applying:

The passengers (sic) destination on the contract of carriage with Malaysian Airline was Australia; and/or

The Passengers (sic) contract of carriage was made in Australia, where [Malaysian Airlines] has a place of business through which the contract was made.

292    Reference was made above to the April 2018 orders identifying the Preliminary Questions, which required Malaysian Airlines to file an affidavit as to any registered group member in respect of whom “the Court’s jurisdiction” was contested. Dr and Mrs Dyczynski knew none of this. But in any event, in accordance with the orders, on 8 May 2018, Mr Paul Freeman, a partner of Clyde & Co Singapore Pty Ltd, who was part of a team within Clyde & Co responsible for the global management and conduct of all MH17 claims, swore an affidavit. The affidavit dealt with the group members who completed the registration forms. In respect of Fatima, the following was deposed to:

Fatima Dyczynski

1.    In respect of Fatima Dyczynski the list of group members’ document records that:

i.    The destination on the contract of carriage was Australia;

ii.    The contract of carriage was made in Australia; and

iii.    Australia was not her principal and permanent place of residence.

2.    The destination on the contract of carriage was not Australia and the contract of carriage was not made in Australia…

3.    The ticketing itinerary for Fatima Dyczynski records:

i.    A departure point of Amsterdam;

ii.    A final arrival point of Amsterdam; and

iii.    An issuing agency of ‘MAS E Commerce Amsterdam NL’ which I am instructed denotes that the ticket was purchased online utilising the Respondent’s website. From information provided to me by the Respondent, which I believe to be correct, the coding ‘RLOC MH’ on the top right of the ticketing itinerary indicates that the booking was made through the Respondent’s reservation system located at its head office within Malaysia.

293    Importantly, Mr Hyland gave evidence that he considered this affidavit and, as a consequence, “formed the view” that Dr and Mrs Dyczynski “did not satisfy the definition of group member as particularised in the Amended Statement of Claim filed in the Representative Proceedings”.

294    There was apparently no discussion between LHD and Dr and Mrs Dyczynski as to their completed registration form either before or after this view of their solicitor, Mr Hyland, was formed. At this point, based on the communications received from LHD, Dr Dyczynski believed not only that he and his wife had registered in accordance with the orders of the Court (which they had), but also that his registration form had been completed in a way that was consistent with the advice he had received that their claim could be advanced in Australia. Dr Dyczynski was not told by his solicitor that an aspect of the individual claim of Dr and Mrs Dyczynski had, contrary to the indication given to them in the opt-out notice, been accelerated, and the underlying merits of their individual claim to fall within a category of persons able to bring a Montréal Convention claim was proposed to be determined on a final basis.

295    On 5 July 2018, and again without any prior discussion with Dr and Mrs Dyczynski, senior and junior counsel for Mrs Gibson filed a document entitled “Applicant’s Submissions on Preliminary Questions on (I) Jurisdiction in Relation to Some Individual Group Members and (II) a Plea in Bar or Defence of Accord or Satisfaction”, which had been dated 20 June 2018. The following first four paragraphs of those submissions were in the following terms:

1.     Following the closure of the “class” the applicant represents the following claimants in these proceedings:

Steven Jonas Baker

Jeffrey John Baker

Andrew Richard Malcolm

Jane Elizabeth Malcolm

Jerzy Dyczynski

Auguste Angela Rudhart-Dyczynski

Tjerk Duinstra

Ian Charles Morice

Evonne Teoh Ee Vern

David Vern

Lim Vern

Kooi Vern

Chelsea Liliane Gibson

2.     These claimants claim as a result of the death of the following passengers on MH17:

Theresa Baker

Wayne Baker

Carol Clancy

Michael Clancy

Liliane Delfina Derden

Helena Sidelik

Elaine Teoh

3.     Upon the reading of the affidavit of Paul Freeman sworn 8 May 2018 and the admission of that affidavit and the annexures to it into evidence the applicant concedes that those claimants who bring their claims under the [CACLA] in respect of the deaths of Fatima Dyczynski, Wilhelmus Theodorus, Maria Grootscholten and Olgal Ioppa are persons in respect of whom the Court lacks jurisdiction under Article 33 of the [Montréal Convention]. (emphasis added)

4.     In the applicant's submission the result is that there are seven deceased passengers in respect of whom there are twenty “persons” within the meaning of s.33C(l)(a) of the [Act] in respect of whom the Court has jurisdiction because the deceased passengers were within the jurisdictional parameters identified in Gibson v Malaysian Airline System Berhad [2016] FCA 1476 at [16].

296    When the matter came before the Court for the listed hearing of the Preliminary Questions on 2 August 2018, Mr Chris Barry QC and Mr Rowe appeared for Mrs Gibson and Ms Gleeson appeared for Malaysian Airlines. The transcript records the following comment by senior counsel for the applicant:

Your Honour, we have resolved disputes about all matters except one and the remaining dispute arises from the death of the passenger, Elaine Teoh.

297    After this, an argument was advanced by Malaysian Airlines that the claim of a group member, Ms Teoh’s legal personal representative (who had also apparently commenced proceedings in Malaysia), should be stayed on forum non conveniens grounds. It is unnecessary to make any comment other than noting that this application also misapprehended how Pt IVA procedure is supposed to work and the status of group members. After this issue had been resolved, what then is recorded on the transcript demonstrates that all parties had given some consideration to resolving the class action and, after discussing an order for mediation, his Honour asked (at T 11):

HIS HONOUR: Mr Barry, when can you get your quantum house in order?

MR BARRY: Would your Honour pardon me for a moment.

…

HIS HONOUR: Not in a formal sense, just in a sort of informal sense.

MR BARRY: Mr Rowe has been dealing with this.

MR ROWE: Your Honour, it’s like a rolling maul so far as getting the evidence. We would be in a situation where we could probably start a mediation on, say, the first five cases or fives case we nominate where we’ve got the information, but it might be another month before we can give all the information in the next five cases.

HIS HONOUR: Would it be better that they all happen at once from your perspective?

MR ROWE: Well, with respect, your Honour, our experience has been with these cases that if we set a day aside for five cases, it seems to work where we can get all the information to the other side in that time and then a month later another five cases and then a month later the remainder of the cases. So that the evidence that we’re providing and we’re required to provide can be in the hands of the respondents well before the actual mediation.

HIS HONOUR: Okay. Well, is - - -

MS GLEESON: There’s only one thing to be said against that, and that’s not suggesting it isn’t entirely sensible. But there is a cost aspect related to it. These matters best settle in my experience when my principals in Singapore are present. If we were to do it on a staged basis, they would have to come out and come out again, and there would be some costs associated with not doing it all in one hit. If your Honour is minded to, it may be worthwhile on this occasion to set down rolling mediations over a very short period, say, a period of three days where we deal with a few claims on one day, a few claims on another day, a few claims on the day next just to ensure that my principals are there and in a position to resolve the whole of the claims.

HIS HONOUR: Sounds sensible.

MR ROWE: Yes.

298    It appears the settlement discussions of the parties proceeded on the basis that only the claims of registered group members the applicant had not “conceded” are “persons in respect of whom the Court lacks jurisdiction under Article 33 of the [Montréal Convention]”, were considered. Not only was the claim of the Dyczynskis abandoned, but the same appears to be the case with the claims of the legal personal representatives of Wilhelmus Grootscholten and Olgal Ioppa (Three Additional Registered Group Members).

299    Having had no communication from LHD since March 2018, on 14 November 2018, Dr Dyczynski emailed LHD requesting an update on the class action and, having become aware that mediation had been scheduled before a Registrar of the Court (between 29 October and 6 November 2018), sought details of the mediation which occurred on 6 November 2018. On 15 November 2018, Dr Dyczynski received an email from LHD in the following terms:

Dear Doctor,

The MH 17 class-action failed to resolve during the course of the recent Federal Court mediation.

We will now proceed to request the court to list the matter for a further Case Management Directions Hearing. On the next Directions Hearing we will request the Court to enter orders listing the class action for hearing. We anticipate that it would be unlikely that the Court will be in a position to list the matter for hearing until the second half of 2019.

Regards

Michael Hyland

Special Counsel

300    Dr Dyczynski continued to remain ignorant of the developments in the class action. He was also ignorant of the fact that the author of this email, his solicitor, had well prior to its writing formed the view that Dr and Mrs Dyczynski “did not satisfy the definition of group member as particularised” and their lawyers had proceeded, and were proceeding, on the basis that their claim could no longer be advanced.

301    Eventually, as noted above, but without Dr and Mrs Dyczynski knowing, the case settled in June 2019. After seeing an article online regarding the settlement, Dr Dyczynski sent an email to LHD and the Chambers of the primary judge on 17 July 2019. With what might be thought to be considerable self-restraint, in his email, Dr Dyczynski requested further information and copies of the relevant documents. After initially being told by his solicitor (as extraordinary as it seems) that the settlement was “confidential” and a copy of the orders could be obtained from the Austlii website, Dr Dyczynski persisted, and it was not until 22 July 2019 that he was informed his solicitors had formed the view that Dr and Mrs Dyczynski did not satisfy the definition of group member (a view, it will be recalled, that Mr Hyland had formed after reading the affidavit of Mr Freeman well over a year beforehand). The letter from LHD relevantly noted:

… you did not satisfy the definition of a group member as Ms Dyczynski’s destination on her contract of carriage with Malaysia Airlines was not Australia and her contract of carriage was not made in Australia.

In the event that you had satisfied the definition of a group member, as a result of the High Court judgement (sic) entered on 8 May 2019 in the Parkes Shire Council v. South West Helicopters Pty Ltd in the absence of any evidence of financial dependency on the late Ms Fatima Dyczynski, you could not have succeeded in a [Montréal Convention] claim for compensatory damages.

The position in relation to your claim as non-passengers is that neither of you had a claim in the Australian class action as you could not be group members by definition and the effect of the Montréal Convention, because your claim was through the deceased and she could not qualify you as a group member, because she was not an Australian citizen or resident, did not purchase her ticket in Australia and Australia was not her final destination.

Further, the only damages claim with any potential was for psychiatric injury. The decision of the High Court in May this year effectively removed that head of damage from claims under the Montréal Convention.

We sympathize with you on the unsatisfactory outcome of this case and for your loss but there is nothing further that can be done.

In the circumstance that you wish to criticise our actions to His Honour Perram J you place us in a conflict of interest. We are of the view that your criticism is not justified, but if you wish to obtain further advice you should instruct other lawyers.

302    The prompt response of Dr and Mrs Dyczynski was, as unrepresented litigants, to file an application which relevantly sought clarification that they were group members. The hearing of this application led to the declaration which is the subject of this appeal. Before coming to that hearing, it is next worth recounting exactly what earlier occurred in the settlement approval application.

D    THE APPROVAL APPLICATION

303    On 18 June 2019, LHD filed an application seeking orders pursuant to s 33V of the Act that the Court: (a) “approves the settlement of the representative proceedings”; or (b) “[o]rders the representative proceedings be discontinued”. Why the latter of these orders was sought is difficult to fathom. In any event, when the application came before the Court, as an initial step, the applicant sought an order dispensing the need to comply with the requirement in s 33X(4) of the Act. This important safeguard to protect the interests of group members who may be ignorant of an application which may affect their rights provides:

(4)    Unless the Court is satisfied that it is just to do so, an application for approval of a settlement under section 33V must not be determined unless notice has been given to group members.

304    Mr Rowe expressed the view (T2.43–5) that one of two reasons as to why no notice to group members was needed was because:

We have the view that the representative proceedings should be discontinued under 33[V]. Although approval will have the same effect, we don’t mind which way that goes.

305    The other reason to dispense with the notice requirement, accepted by the primary judge, was that “all the class members are in front of the court”, that is, all persons to whom notice would otherwise be given were represented before the Court because all group members had retained LHD. The following exchange (T3.10–9) then occurred between his Honour and counsel for the applicant:

HIS HONOUR: It probably doesn’t really matter in relation to 33[V], because all the jurisprudence about that provision is driven by the need to ensure who aren’t before the court - - -

MR ROWE: Yes.

HIS HONOUR: - - - aren’t sailed down the river, and there are no such parties here, so the usual kind of considerations may not arise.

MR ROWE: That’s right, your Honour...

306    Mr Rowe informed the Court that all persons affected by the settlement “have given instructions to settle” (T4.26). Needless to say, Dr and Mrs Dyczynski had given no such instructions. To adopt his Honour’s apposite metaphor, they were being sailed down the river. But the primary judge was not apprised of the reality of the situation. Unsurprisingly in these circumstances, his Honour then noted (T5.1–3):

Because it sounds to me, on the [un]contested facts, I don’t need to be satisfied about the reasonableness of the settlement because I’m satisfied that everyone’s in and there is no one who needs to be protected.

307    Mr Rowe described the amount of the settlement to “have been, in the circumstances, very fair. Indeed, arguably, a better result than if it went to hearing” (T10.27). Indeed, after requesting the Court to be closed (which his Honour did with some reluctance), the following exchanges occurred (T15.29–T16.27):

HIS HONOUR: Okay. So it’s a pretty small payment. So what you’re saying is that one ought not to be distracted about the differences between the three applicants because - - -

MR ROWE: Yes.

HIS HONOUR: - - - or the three class members, because, in fact, everything which has been handed over is a windfall.

MR ROWE: Yes. But there definitely is – the offers were made on the basis of an offer for the group.

HIS HONOUR: Yes. No. I understand.

MR ROWE: None of the offers were made for the individuals.

…

HIS HONOUR: - - - and the lion’s share of it. Well, actually, the lion’s share of this must be – it’s a pretty generous offer

MR ROWE: Yes, it is. No, that’s the whole point, your Honour. This is why I think my friends might have been embarrassed by it, when you come to work it out. Because it is, literally – the distribution is a windfall.

308    In approving the settlement, and referring to the usual need to consider closely the terms and context of the settlement, his Honour noted (in Gibson v Malaysian Airline System Berhad (Settlement Approval) [2019] FCA 1007 at [2]–[3]) that:

This case is different, however. The group has always been defined in a limited way and following the opt-out notices there were, so I was told, only at most 12 group members. Each of those group members has now settled with the respondent on a group basis and is party to the deed of settlement. Each is also represented by the same lawyers who represent Ms Gibson, the lead applicant. In that circumstance, there is no role for the Court’s protective function. In deciding whether leave should be granted in such a case, it is not necessary for the Court to assess the reasonableness of the settlement (leaving aside the position of infants and so on).

In any event, if it had been necessary I would have been satisfied that the settlement was a reasonable one. The terms of the settlement are confidential. Without setting out the detail, the respondent has paid the group members a sum which, whilst not especially large, is not small or trivial either. It has done so in circumstances where the High Court’s recent decision in Parkes Shire Council v South West Helicopters Pty Limited [2019] HCA 14 meant that the largest claim made by each group member (that for nervous shock) was no longer maintainable. The costs charged by the group members’ lawyers are reasonable in my view. There is an issue between some of the group members as to how those costs are to be apportioned. However, that does not in my view impact on the reasonableness of the settlement in this case.

E    THE APPLICATION OF DR AND MRS DYCZYNSKI

309    On 28 August 2019, the primary judge heard the application of Dr and Mrs Dyczynski, which his Honour characterised as an application for final relief to consider, as a separate question, whether Dr and Mrs Dyczynski were group members. Only if the primary judge found that Dr and Mrs Dyczynski were members of the class, did his Honour propose to consider what relief to grant and consider the impact, if any, of the alleged concession that Dr and Mrs Dyczynski “are persons in respect of whom the Court lacks jurisdiction under Article 33 of the [Montréal Convention]”.

310    During the course of the hearing, the following exchange (T10.1–11.5) occurred between the primary judge and Mr Rowe. In reading this exchange it is well to keep in mind that Mr Rowe had earlier held a brief to advise Dr and Mrs Dyczynski and was being instructed by Mr Hyland, who had acted for Dr and Mrs Dyczynski. It commences by referring to the concession made in the submissions filed on 5 July 2018 in relation to the Preliminary Questions:

HIS HONOUR: So what do I do? If I have to resolve the first question, which is whether – I was told the Dyczynskis were out – they were withdrawn. Was that done on instructions, or - - -

MR ROWE: Your Honour, it was in part in reliance on Freeman’s affidavit. We accepted the facts and truth of that, and we took the view that they could not make the claim.

HIS HONOUR: And were you – and you may not be able to answer this – were you in touch with them at all? Not you, but - - -

MR ROWE: Well, I had a conference with them, your Honour.

HIS HONOUR: Okay.

MR ROWE: But that was some time ago, and I don’t think, when we had that conference, that this issue would - - -

HIS HONOUR: Come up.

MR ROWE: - - - come about.

HIS HONOUR: So when did the Dyczynskis find out that they were out, as it were?

MR ROWE: Your Honour, I can’t – could your Honour pardon me one moment?

HIS HONOUR: Yes. Sure.

MR ROWE: Your Honour, I can’t actually give you a specific date, but your Honour will recall that, early in the piece, your Honour received some correspondence from Mr Dyczynski - - -

HIS HONOUR: Dr Dyczynski.

MR ROWE: Dr Dyczynski. And, after that, my instructing solicitor informed me there was some correspondence in relation to the standing in the court.

HIS HONOUR: Okay. So you support Ms Gleeson’s position. Presumably, you would prefer for me to go around that question altogether.

MR ROWE: Well, we rely on the affidavit of Mr Freeman, which we have no reason to doubt.

HIS HONOUR: Yes.

MR ROWE: And the annexures to that, which seem to indicate it was a return ticket.

HIS HONOUR: So I suppose what you say is, in fact, it was a correct statement. It was a correct statement. And you weren’t acting for them. It was just a correct statement about who the class composition had become by then.

MR ROWE: That’s right. They didn’t fall within the composition.

(emphasis added)

311    After identifying the issue as being whether Dr and Mrs Dyczynski were group members, his Honour first observed (at [4]–[5]) that the “jurisdiction” was relevantly based on the Montréal Convention and that Art 33 allows a claim in the case of a deceased passenger to be brought in five potential locations, being: (a) the state where the carrier is domiciled; (b) the state where the carrier has its principal place of business; (c) the state where the carrier has a place of business through which the contract of carriage was made; (d) the state which is the place of destination; and (e) the state where the passenger had his or her principal and permanent residence at the time of the accident and to or from which the carrier operated services on its own or using another’s carrier as an aircraft by commercial agreement, and from which the carrier conducts its business of carriage of passengers from premises leased or owned by the carrier or another carrier.

312    After recounting the procedural history, his Honour then observed (at [9]) that:

… it would be pointless to have a class definition which included persons within it with respect to whom the Court had no jurisdiction. So the immediate question is whether the Dyczynskis fall within paragraphs 7(i) or (ii), it not being suggested that they fell within 7(iii), since Australia was not Fatima’s principal and permanent place of residence within the meaning of the Montréal Convention.

(emphasis added)

313    Accordingly, his Honour put paragraph 7(iii) to one side (which defined group members as including personal representatives of passengers “(w)here Australia was the passenger’s principal and permanent place of residence at the time of the accident and to or from which the respondent operated services on its own or using another carrier’s aircraft by commercial agreement and from which the Respondent conducts its business or carriage of passengers from premises leased or owned by the Respondent (or other carrier)”).

314    The primary judge then first turned to paragraph 7(i) (which defined group members as including personal representatives of passengers “(w)hose destination on the contract of carriage was Australia”). This was said to be not applicable because the primary judge (at [10]) found Fatima was booked on a return ticket from Amsterdam to Perth and, relying upon Gulf Air Co GSC v Fattouh [2008] NSWCA 225; (2008) 230 FLR 311 (Allsop P, Hodgson JA and Campbell JA), concluded the relevant destination was Amsterdam, being the place to which Fatima was proposing to return.

315    His Honour then turned to the application of paragraph 7(ii) (which defined group members as including personal representatives of passengers “(w)hose contract of carriage was made in Australia where the respondent has a place of business through which the contract was made”). The primary judge found (at [14]) that the relevant contract was made “either in the Netherlands or Malaysia, but certainly not in Australia” and hence this limb of the group definition was inapplicable.

316    As a consequence, his Honour determined (at [15]) that:

… it must follow that the Dyczynskis are not class members and are, unfortunately, not entitled to share in the settlement. They had once been class members, but the amendment of the statement of claim on 26 July 2017 removed them as class members.

(emphasis added)

F    THE APPEAL

317    In the further amended notice of appeal, Dr and Mrs Dyczynski raise grounds of appeal that can be placed under the following two headings:

(1)    the primary judge erred in holding (at [9]) that Dr and Mrs Dyczynski had not suggested that they fell within paragraph 7(iii) of the amended statement of claim (Principal Place of Residence Contention Ground); and

(2)    the primary judge erred because he ought to have informed Dr and Mrs Dyczynski that, before the Court could find that Fatima’s principal and permanent place of residence at the time of the accident was Australia, the Court needed evidence in admissible form and the Court had power to adjourn the hearing for the purpose of allowing for such evidence to be filed (Procedural Fairness Ground).

318    At the hearing of the appeal, Dr and Mrs Dyczynski articulated an additional ground which can be expressed as follows:

(3)     the primary judge erred in making the declaration that Dr and Mrs Dyczynski “are not class members within the meaning of paragraph 7 of the amended statement of claim” because Dr and Mrs Dyczynski were persons with a claim against Malaysian Airlines and on whose behalf the applicant, Mrs Gibson, commenced the class action, and they remained group members during the currency of the class action (Remaining Group Member Ground).

319    In the event the appeal is allowed, the primary relief sought is for a declaration be substituted that Dr and Mrs Dyczynski are class members “within the meaning of paragraph 7(iii) of the amended statement of claim” and, alternatively, that the matter be remitted for hearing as to whether Dr and Mrs Dyczynski are class members. Orders are further sought pursuant to s 33ZF of the Act or otherwise to set aside the settlement “to the extent only that the proceedings are not dismissed” and for directions to allow Dr and Mrs Dyczynski to pursue their claim (and allowing the concession made in written submissions filed 20 June 2018 to be withdrawn, to the extent it is held to be binding).

320    Malaysian Airlines sought leave to file out of time a notice of contention. The first ground of the notice of contention merely repeated the finding of the primary judge that Dr and Mrs Dyczynski had not suggested that they fell within paragraph 7(iii) of the amended statement of claim. The second and third grounds can be taken together and amounted to a contention that the declaration can be supported because Australia was not (or Dr and Mrs Dyczynski have not established that it was) Fatima’s principal and permanent place of residence.

321    Despite the fact they did not seek an order of the primary judge to be set aside, leave was also sought to file an out of time a notice of cross-appeal. The point of departure for each of its grounds was expressed to be “if for the reasons stated by the Appellants in their Notice of Appeal the primary judge made an error (which is denied)”, that the primary judge ought to have made further declarations. That is, declarations that: (a) that Dr and Mrs Dyczynski “are not class members within the meaning of paragraph 7 of the Amended Statement of Claim”; (b) as at 17 July 2014 Australia was not Fatima’s “principal and permanent place of residence” within the meaning of Art 33(2) of the Montréal Convention; (c) as at 17 July 2014 the Netherlands was Fatima’s principal and permanent place of residence within the meaning of Art 33(2) of the Montréal Convention; and (d) that the claim for damages made by Dr and Mrs Dyczynski was extinguished on 18 July 2016 pursuant to Art 35 of the Montréal Convention.

322    It is convenient to deal briefly with the leave applications. As to the notice of contention, the first ground adds nothing as it is not a proper ground of contention; as to the second and third grounds, for reasons explained below in the context of dealing with the applications to adduce further evidence, we do not propose to examine and determine the question as to Fatima’s principal and permanent place of residence and, accordingly, as was made clear at the hearing, we do not propose to entertain argument that the declaration below can be supported by deciding this issue. It adds nothing and leave ought to be refused to file and rely upon it out of time.

323    For the same reasons, leave should be refused to seek declarations in the form identified as (b) and (c) above. Leave should also be refused in relation to advancing grounds of cross-appeal to support declaration (a) (which adds nothing to the issues raised in the notice of appeal). This disposes of proposed grounds one and two of the cross-appeal. The assertion represented by ground three of the cross-appeal that the claim for damages made by Dr and Mrs Dyczynski was extinguished on 18 July 2016 pursuant to Art 35 of the Montréal Convention did raise a discrete issue of potential importance. Although it is not properly a cross-appeal point, leave should be granted to extend time to file a notice of contention reflecting ground three in the draft cross-appeal (Limitation Contention).

324    I will come back to each of these issues separately, but before doing so it is necessary to explain four important aspects of how the Pt IVA regime operates in relation to group members which, as will become evident, are of singular importance in determining this appeal.

G    PART IVA, CLAIMS AND GROUP MEMBERSHIP

325    The aspects of Pt IVA and group membership necessary to bear in mind can be explained by posing and answering four questions:

(1)    How does a person become a group member?

(2)    How are the persons who are group members identified?

(3)    How does a person who is a group member cease to be a group member?

(4)    How is the claim of a group member determined in whole or in part?

G.1    How does a person become a group member?

326    Pt IVA permits a class action to be commenced by a representative party on behalf of group members (s 33C) whose consent is generally not required (s 33E) but who must be given notice of and an opportunity to opt-out of the proceeding (s 33J): see BMW Australia Ltd v Brewster [2019] HCA 45; (2019) 374 ALR 627 (at 653 [108] per Gageler J).

327    Section 33C(1) identifies the circumstances when a class action may be commenced:

Subject to this Part, where:

(a)    7 or more persons have claims against the same person; and

(b)    the claims of all of those persons are in respect of, or arise out of, the same similar or related circumstances; and

(c)    the claims of all of those persons give rise to a substantial common issue of law or fact;

a proceeding may be commenced by one or more of those persons as representing some or all of them.

(emphasis added)

328    As I explained in Dillon v RBS Group (Australia) Pty Ltd [2017] FCA 896; (2017) 252 FCR 150 (at 159 [43]–[44]), s 33C directs attention to the notion of a “claim”—a fundamental concept in Pt IVA proceedings. But what is a claim?

329    A “claim” is not the cause of action pleaded: King v GIO Australia Holdings Limited [2000] FCA 617; (2000) 100 FCR 209 (at 219 [23]–[24] and 222–223 [34]–[35] per Moore J). It is a term to be given a wide meaning: Allphones Retail Pty Ltd v Weimann [2009] FCAFC 135 (at [80] per Tracey and McKerracher JJ). The breadth of the concept was explained by Lindgren J in Australian Competition and Consumer Commission v Giraffe World Australia Pty Ltd [1998] FCA 819; (1998) 84 FCR 512 (at 523):

As to the meaning of “claims” in s 33C(1)(a), certain matters are tolerably clear.

First, the claims must be claims recognised by the law.

Second, s 33C(2)(a)(i) shows… that the “claims” to which s 33C(1)(a) refers are not confined to claims to relief as of right.

Third, whatever the word “claims” in the provision denotes, they have an existence independent of, and antecedent to, the commencement of the proceeding, since it is only if seven or more persons have claims against the same person that a proceeding under Part IVA may be commenced by one or more of them. Perhaps this signifies that it is not a sufficient condition of the existence of a claim that a claim has been “made”, “asserted” or “threatened”.