FEDERAL COURT OF AUSTRALIA

DHI22 v Qatar Airways Group QCSC (No 1) [2025] FCAFC 91

ORDERS

THE COURT ORDERS THAT:

1.    Leave to appeal from orders 1 to 10 made by the primary judge on 10 April 2024 accompanying the reasons for judgment cited as DHI22 v Qatar Airways QCSC (No 2) [2024] FCA 348 be granted (the No 2 orders).

2.    The draft notice of appeal dated 24 April 2024 stand as the notice of appeal against the No 2 orders.

3.    The appeal against the No 2 orders be allowed in part.

4.    Orders 2 to 10 of the No 2 orders be set aside.

5.    In place of the orders that are set aside, it be ordered that:

(a)    The relief sought in prayers 1 and 1A of the first respondent’s amended interlocutory application dated 24 May 2023 be dismissed;

(b)    The following be struck out from the further amended statement of claim:

(i)    the words “on the Doha airport tarmac” in [33];

(ii)    the words “in circumstances where its corporate subsidiary, the Third Respondent, was the contracted manager and operator of the Doha Airport” in [34]; and

(iii)    particulars (viii) to (x) in [34].

(c)    The costs of the first respondent’s amended interlocutory application dated 24 May 2023 be reserved.

(d)    The third respondent’s interlocutory application dated 30 June 2023 be dismissed with costs.

(e)    The applicants have liberty to apply, at an appropriate time, to file a second further amended statement of claim.

6.    The first and third respondents pay the appellants’ costs of the appeal.

[Orders 7-10 accompany the separate reasons in DHI22 v Qatar Airways Group QCSC (No 2) [2025] FCAFC 92]

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

REASONS FOR JUDGMENT

MORTIMER CJ:

1    I agree with the reasons of Stewart J.

Associate:

Dated:    24 July 2025

STEWART J:

A. INTRODUCTION

2    The first instance proceeding arises out of a series of events at Hamad International Airport in Doha, Qatar in October 2020.

3    The five applicants for leave to appeal – whom I refer to as appellants for convenience – are women who boarded a Qatar Airways flight bound for Sydney from Doha. After all passengers had boarded and after the aircraft had been waiting for several hours at the gate, and had then been pushed back from the gate, only to return to it, they allege that all women passengers were directed to leave the aircraft. The direction was given by airline crew and by armed and unarmed officials at least some of whom were police officers from the Qatar Ministry of Interior (MOI).

4    The appellants allege that they were instructed to go back along the aerobridge and into the departure area of the airport. They were then directed to an ambulance parked on the tarmac near the aircraft where four of them (not the fifth appellant) were instructed to enter an ambulance. In the ambulance they allege their bodies were inspected or invasively examined without their consent, some to a greater extent than others. The examinations of the first, third and fourth appellants are said to have included unlawful physical contact by a woman (who appeared to them to be a nurse) in the ambulance. The inspection of the second appellant is alleged to have been visual in nature. The women were then directed to return to the aircraft.

5    The instructions to them, and the examination of the women, were said to have occurred because of a report that a newborn baby had been found in a rubbish bin in an airport bathroom. Qatari officials began an intensive and wide-ranging search for the woman who had given birth to the child. It was common ground that what happened to the five appellants was part of that exercise by Qatari officials.

6    The appellants subsequently commenced proceedings against three respondents. The causes of action asserted against the first respondent, Qatar Airways Group QCSC (the airline), are the following:

(1)    The first, third and fourth appellants assert causes of action under Art 17 of the Convention for the Unification of Certain Rules for International Carriage by Air (1999) (Montreal Convention), which is given legal force in Australia by s 9B of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) (Civil Aviation Act) for bodily injury; and

(2)    All the appellants assert causes of action for negligence at common law, the first, third and fourth appellants necessarily doing so in the alternative to their Convention claims.

7    The causes of action asserted against the second respondent, Qatar Civil Aviation Authority (QCAA) (the civil aviation authority), and the third respondent, Qatar Company for Airports Operation and Management WLL, known as MATAR (a subsidiary of Qatar Airways and the operator of the airport through a contract with QCAA), are the following:

(1)    By all the appellants for negligence at common law;

(2)    By all the appellants for the intentional tort of assault;

(3)    By the first, third and fourth appellants for the intentional tort of battery; and

(4)    By all the appellants for the intentional tort of false imprisonment.

8    The Art 17 and battery claims are brought only by the first, third and fourth appellants because only these appellants say that there was physical contact of them by the “nurse”, as noted above.

B. THE ORDERS SOUGHT TO BE APPEALED FROM

9    There were several interlocutory applications before the primary judge. Those in relation to Qatar Airways and MATAR were dealt with in reasons for judgment cited as DHI22 v Qatar Airways QCSC (No 2) [2024] FCA 348 (PJ). Those are the reasons for the orders with which the present reasons for judgment are concerned.

10    Following a separate hearing, and by way of separate reasons for judgment (DHI22 v Qatar Airways QCSC (No 3) [2024] FCA 351), the primary judge set aside service on QCAA of the appellants’ originating process and further amended statement of claim under s 38 of the Foreign States Immunities Act 1985 (Cth).

11    Because the evidence in the application concerning QCAA was different from that in the applications concerning Qatar Airways and MATAR, and because of the approach taken by the primary judge in dealing with the applications separately, the Court has dealt with the applications for leave to appeal (and the appeals) separately – by way of separate hearings and separate reasons. The present reasons for judgment deal only with the set of orders that were made concerning Qatar Airways and MATAR. Simultaneously with these reasons, the Court will deliver separate reasons for judgment on the appeal against the set of orders concerning QCAA: DHI22 v Qatar Airways Group QCSC (No 2) [2025] FCAFC 92.

Qatar Airways

12    Before the primary judge, Qatar Airways by its amended interlocutory application dated 24 May 2023 sought summary judgment under s 31A(2) of the Federal Court of Australia Act 1976 (Cth) and r 26.01 of the Federal Court Rules 2011 (Cth) (FCR) dismissing the whole of the case against it or, alternatively, the claims of the first, third and fourth appellants under Art 17 of the Montreal Convention. In the further alternative, Qatar Airways sought the striking out of paras 29, 30, 31, 33, 34 and 35 of the further amended statement of claim (FASOC) under FCR r 16.21. Those paragraphs plead the claims in negligence against Qatar Airways.

13    There was also an interlocutory application by the appellants seeking leave to file a second further amended statement of claim (2FASOC). The amendments sought in that pleading do not materially affect the claims against Qatar Airways – they mostly concern the claims against MATAR.

14    Upholding Qatar Airways’ interlocutory application, the primary judge granted summary judgment in its favour dismissing all causes of action against it. That was on the basis that the Convention claims of the first, third and fourth appellants have no reasonable prospect of succeeding because the invasive examinations of those appellants did not take place in “the course of any of the operations of embarking or disembarking” the aircraft within the meaning of Art 17 of the Convention (ie they are not within the temporal scope of Art 17) (PJ [59]). Further, the primary judge concluded that the negligence claims (ie the non-Convention claims) of all the appellants against Qatar Airways have no reasonable prospect of succeeding because although they are not within the temporal scope of Art 17 of the Convention, they are nevertheless claims arising in the course of “international carriage by air” and are therefore excluded by the operation of the exclusivity principle derived from Art 29 of the Convention (PJ [79]-[82]).

15    Against the possibility of being wrong on the summary dismissal of the non-Convention claims on the basis of the exclusivity principle, the primary judge considered the application for the striking out of those claims on the basis that they in any event fail to disclose a reasonable cause of action (ie under FCR r 16.21(1)(e)). His Honour considered those issues in relation to the appellants’ proposed 2FASOC and in that way dealt with the application to amend and the strikeout application together.

16    Whilst the primary judge would have allowed part of the negligence claims against Qatar Airways to proceed (described as the “first limb” to the breach of duty of care), the other parts of it (described as the “second” and “third limb”) were held to have no reasonable prospects of success. Those parts concern matters outside the aircraft including on the tarmac and in the ambulance (see PJ [180]-[190]). In effect, his Honour would have struck out the paragraphs of the FASOC (and not given leave for the paragraphs of the 2FASOC) that articulate the negligence claims against Qatar Airways with reference to what happened to the appellants on the tarmac but no occasion to make such an order arose in light of his Honour’s conclusion, and order, that all the claims against Qatar Airways be summarily dismissed.

17    Nonetheless, his Honour’s conclusions that the second and third “limbs” of the negligence claims against Qatar Airways cannot succeed find expression in order 3 made on 10 April 2024 if it is decided on appeal that Qatar Airways’ application for summary dismissal should have been dismissed. Order 3 granted leave to the appellants to file amended originating documents consistent with his Honour’s reasons for judgment. Of course, if the summary dismissal of the appellants’ claims as being precluded by the exclusivity principle stands on appeal, then there is no basis for them to maintain the pleading of even the first limb to the breach of the duty of care.

18    The appellants seek leave to appeal, and if leave is granted, to appeal, against the primary judge’s summary dismissal of their claims against Qatar Airways, ie order 2 made on 10 April 2024. If successful on that, they also challenge the primary judge’s alternative conclusion that there are no reasonable prospects of the “second limb” to the negligence claims succeeding, and in that way seek to appeal against order 3 made on 10 April 2024. No challenge is made in respect of the “third limb”.

MATAR

19    By a separate interlocutory application, MATAR applied for service on it outside the jurisdiction to be set aside under FCR r 10.43A(2)(c) on the basis that the claims against it have insufficient prospects of success to warrant putting MATAR to the time, expense and trouble of defending them. His Honour did not in terms determine that application. Rather, his Honour considered that application, along with the interlocutory application by the appellants to file the 2FASOC by which the appellants had sought to meet MATAR’s application, as if it was an application to strike out parts of the FASOC. His Honour effectively struck out parts of the FASOC and allowed the amendments reflected in the proposed 2FASOC only in part by granting leave to the appellants to file revised originating documents limited to certain claims. His Honour stood MATAR’s interlocutory application over for determination in the light of the revised documents.

20    The primary judge held that the negligence and intentional tort claims against MATAR have no reasonable prospect of success insofar as they seek to attribute liability to MATAR for the conduct of the MOI police officers and the “nurse” in the ambulance, or contend that MATAR owed a duty of care in relation to, or was otherwise in a position to prevent, the invasive examinations taking place in the ambulance. His Honour was also satisfied that there was no, or was not likely to be, evidence available to refute MATAR’s evidence that “the armed and unarmed persons in dark uniforms” and the “female who appeared [to the appellants] to be a nurse” were not agents of MATAR, akin to MATAR’s employees or agents, or acting under MATAR’s direction or control (PJ [248]).

21    In the result, the appellants were granted leave to file revised pleadings limited to claims against MATAR that can be advanced independently of (a) any alleged vicarious liability for persons, other than employees of MATAR or persons contracted by MATAR to provide security services at the airport, and (b) any allegation that MATAR owed a duty of care to the appellants to take steps to prevent the “nurse” conducting the invasive examinations of the first to fourth appellants in the ambulance as part of the police investigation undertaken by the MOI (PJ [274]).

22    Thus, concerning MATAR, the appellants apply for leave to appeal from, and if leave is granted, to appeal from, the primary judge’s orders dismissing their application for leave to file the 2FASOC, granting them leave to file amended originating documents only in the restricted way identified and the order standing MATAR’s application over, ie against orders 1, 3 and 8 made on 10 April 2024.

The primary judge’s actual orders

23    The appellants seek leave to appeal, and to appeal, from all the primary judge’s orders made on 10 April 2024. For ease of reference, those orders are as follows:

THE COURT ORDERS THAT:

1.     The interlocutory application of the applicants dated 13 September 2023 seeking leave to amend the further amended statement of claim in the form annexed to the interlocutory application is dismissed.

2.     Judgment in favour of the first respondent in relation to the whole of the further amended originating application and the further amended statement of claim insofar as they advance causes of action against the first respondent.

3.     Leave be granted to the applicants to file and serve a second further amended originating application and a second further amended statement of claim that are consistent with these reasons for judgment (Amended Pleadings), by 4.30 pm on Friday, 3 May 2024.

4.     Leave be granted to the applicants to serve the Amended Pleadings on the third respondent, pursuant to r 10.44 of the Federal Court Rules 2011 (Cth) (Rules).

5.     Pursuant to r 10.24 or alternatively, r 10.49 of the Rules, personal service of the Amended Pleadings on the third respondent is dispensed with, and the applicants may serve a sealed copy of the Amended Pleadings on the third respondent by transmitting them by email to the solicitors for the third respondent, at smorris@m2law.com.au and triddell@m2law.com.au.

6.     Order 4 and Order 5 of these orders are made without prejudice to any application that the third respondent might subsequently seek to make.

7.     The proceedings be listed for a case management hearing at 9.30 am on Friday, 10 May 2024.

8.     The third respondent’s interlocutory application dated 30 June 2023 seeking an order that service on it of the further amended originating application be set aside, be stood over for mention at the case management hearing on Friday, 10 May 2024.

9.     The applicants and the first respondent are to confer and seek to reach agreement on the costs of the first respondent, failing which the parties are to exchange short written submissions and any evidence in support of the orders they seek, by 4.30 pm on Friday, 3 May 2024, and the question of the costs of the first respondent will be determined at the case management hearing on Friday, 10 May 2024.

10.     The costs of the applicants and the third respondent, of and incidental to the third respondent’s interlocutory application dated 30 June 2023, be reserved.

C. THE APPLICATIONS FOR LEAVE TO APPEAL

24    There was no debate between the parties about the applicable principles for the grant of leave to appeal. They are set out in Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2000] FCA 1572; 104 FCR 564 at [43] per French J, Beaumont and Finkelstein JJ agreeing; and Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; 33 FCR 397 at 398-399 per Sheppard, Burchett and Heerey JJ.

25    The grounds of challenge to the summary dismissal orders in favour of Qatar Airways and what are, in effect, strikeout orders in favour of Qatar Airways and MATAR are properly treated as ones where there is only one legally permissible answer: GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; 414 ALR 635 at [15]-[17]. The grounds of challenge to the orders that deny the appellants leave to replead claims against Qatar Airways and MATAR challenge an exercise of discretion so the appellants must identify error of the kind described in House v The King [1936] HCA 40; 55 CLR 499.

26    I consider that the challenges to the primary judge’s summary judgment, strikeout and leave to replead decisions raise issues of complexity and cast some doubt, at least, on those decisions. There is also obvious prejudice to the appellants if leave is not granted as the primary judge’s orders bring their proceeding against Qatar Airways to an end and significantly limit the causes of action available against MATAR. For those reasons I am satisfied that leave to appeal should be granted and there should be an order that the draft notice of appeal stand as the notice of appeal.

D. GROUNDS OF APPEAL AND SUMMARY OF CONCLUSIONS

27    There are five grounds of appeal. They concern the following matters:

Grounds 1-3 relating to Qatar Airways:

(1)    The proper interpretation of Art 17 of the Montreal Convention and whether the claims of the first, third and fourth appellants against Qatar Airways necessarily fall outside Art 17;

(2)    The proper interpretation of Art 29 of the Convention and whether Art 29 necessarily precludes the non-Convention claims of all the appellants against Qatar Airways;

(3)    The primary judge’s (alternative) conclusion that the “second limb” of the negligence claims by all appellants against Qatar Airways will necessarily fail (there is no appeal sought in respect of the primary judge’s conclusions on the “third limb”);

Grounds 4 and 5 relating to MATAR:

(4)    The primary judge’s conclusion that the intentional tort and negligence claims against MATAR insofar as they involve the “nurse” who examined four of the appellants will necessarily fail; and

(5)    The primary judge’s conclusion on the appellants’ other negligence claims against MATAR that the pleaded breaches of the duty of care in relation to the failure to take steps to prevent the “nurse” conducting the invasive examinations will necessarily fail.

28    For the reasons that follow, my conclusions in summary form on each of the grounds of appeal are as follows.

29    Appeal ground 1 succeeds because it cannot be concluded with sufficient confidence at this stage of the proceeding that the “accident” relied on by the first, third and fourth appellants did not take place during the course of any of the operations of embarking or disembarking. The result is that the Art 17 claims of the first, third and fourth appellants against Qatar Airways should go to trial.

30    Appeal ground 2 also succeeds because the scope of application of the exclusivity principle derived from Art 29 of the Convention is coextensive with the temporal scope of Art 17, ie if the accident causing damage “took place on board the aircraft or in the course of any of the operations of embarking or disembarking”, and not the potentially broader scope formulated by the primary judge as “during the international carriage of passengers by air”. The result is that if the negligence claims of the appellants against Qatar Airways are not within the temporal scope of Art 17, they are not precluded by the exclusivity principle. Whether the claims are within that scope will have to be determined at trial, as decided in relation to appeal ground 1, with the result that the negligence claims should also go to trial.

31    Appeal ground 3 succeeds on the basis that although insufficient facts are presently pleaded to justify the pleading of the “second limb” to the negligence claims against Qatar Airways, it cannot be said with confidence at this stage of the proceeding that the appellants will not be able to plead such facts. They should therefore have the opportunity to do so if and when they have the requisite basis to support such a pleading.

32    In relation to appeal grounds 4 and 5, the interlocutory application to set aside service on MATAR should have been dismissed once it was concluded that certain of the claims against MATAR should proceed to trial. There was no application by MATAR before the primary judge for summary dismissal or striking out of any of the remaining claims against it. However, accepting that by the way in which the parties put the case before the primary judge there may have been a basis for his Honour to consider striking out parts of the claims, ground 4 succeeds on the basis that it cannot be concluded with sufficient confidence at this stage that the appellants have or will have no basis to plead that the “nurse” was an employee or a “true agent” of MATAR. The appellants should accordingly have leave to plead such a basis if and when they are able to properly do so.

33    Appeal ground 5 succeeds on the basis that it is an error to conclude at this stage of the proceeding that MATAR’s duty of care cannot possibly extend to the circumstances in and around the ambulance.

34    Those conclusions are consistent with the finding in the QCAA appeal that the principal operation on the night in question was an MOI police operation. That is because the claims against Qatar Airways and MATAR, as indeed also QCAA, for the most part concern the positive role played by the respondents and those for whom they are vicariously liable in that operation and their failures to take steps to prevent, or lessen the harm caused by, aspects of that operation.

E. PLEADED FACTS COMMON TO ALL CLAIMS

35    It is convenient to identify the material facts that are pleaded in the 2FASOC (at [10]-[21]) that are relevant to all the causes of action before proceeding to consider each of the causes of action in turn.

(1)    The appellants boarded the aircraft, the aircraft remained parked at the terminal for three hours awaiting take-off, it then reversed away from the terminal and approximately one minute later returned to the terminal.

(2)    It was announced on the aircraft that all female passengers were required to exit the aircraft with their passports, and persons in dark uniforms armed with guns entered the aircraft.

(3)    The appellants exited the aircraft, the fifth appellant (who is legally blind) being directed and assisted by the flight crew.

(4)    The appellants were directed by the flight crew and by armed and unarmed persons in dark uniforms to a departure lounge in the airport terminal.

(5)    The first, second and third appellants were directed by the armed and unarmed persons in dark uniforms, the fourth appellant by an unidentified female employee or agent of MATAR and the fifth appellant by a member of the Qatar Airways flight crew, into a lift and down to a lobby near the tarmac.

(6)    The first to fourth appellants were directed by armed persons in dark uniforms onto the tarmac and into an ambulance where they were individually examined by a woman who appeared to be a nurse whereas the fifth appellant was directed onto the tarmac by a member of the Qatar Airways flight crew and from there back to the aircraft after an unidentified male employee or agent of MATAR in civilian attire said words to the effect of “no, not her”.

(7)    The first appellant was required by the “nurse” take off her pants and underwear whereafter she was subjected to “gynaecological examination” by the nurse which included the penetration of her vagina whereafter she was directed back to the aircraft by armed or unarmed persons in dark uniforms.

(8)    The second appellant was required to take off her pants and underwear and was subjected to a “gynaecological inspection” by the nurse whereafter she was directed back to the aircraft by employees or agents of Qatar Airways and/or MATAR.

(9)    The third appellant was required to unzip her pants and lift up her t-shirt and was physically examined and touched by the nurse on her stomach and breasts whereafter she was directed back to the aircraft by an armed person in dark uniform.

(10)    The fourth appellant had her pants and underwear forcibly pulled down and was subjected to a “gynaecological inspection” by the nurse whereafter she was directed back to the aircraft by an unidentified staff member of MATAR.

36    It is pleaded that by reason of the respondents’ conduct, each of the appellants has suffered and continues to suffer loss and damage the particulars of which are presently as follows:

(1)    The first, third and fourth appellants were subjected to unlawful physical contact – from which I infer that the “gynaecological inspection” pleaded in relation to the second appellant did not involve physical contact by the nurse;

(2)    Each of the appellants has suffered and/or continues to suffer from anxiety, depression, post-traumatic stress disorders and/or other psychological effects;

(3)    The appellants have incurred medical expenses; and

(4)    The first appellant has suffered economic loss as a result of needing to take medical leave from work due to the effects of the events on her mental health.

37    The appellants also claim exemplary damages against the respondents including in relation to “the conduct of their subcontractor, agents and employees and persons akin or analogous to employees or were otherwise under their control or direction” particulars of which are given as:

(1)    The appellants were directed about by armed and unarmed persons despite being cooperative with requests or requirements that they exit the aircraft and move through the airport;

(2)    The first, second, third and fourth appellants were subjected to intimate gynaecological examinations or inspections to which they did not consent;

(3)    The third appellant was subjected to the treatment described above despite her, at the time, turning 52 years of age;

(4)    The fourth appellant was subjected to the treatment described above despite her being in the company of her five-month-old son;

(5)    The fifth appellant was subjected to the conduct described above despite her, at the time, being 73 years old and legally blind; and

(6)    The appellants were subjected to the treatment described above despite being paying passengers on a commercial flight wholly innocent of the matter concerning the abandoned newborn baby.

F. GROUNDS 1 AND 2 – THE MONTREAL CONVENTION

Introduction

38    As mentioned, the Montreal Convention is given legal force in Australia by s 9B of the Civil Aviation Act. The text of the Convention is reproduced as Sch 1A to the Act. Although the appellants’ claims in reliance on the Convention are in substance claims under the domestic statute, the treaty provisions that are given effect in domestic law have meaning in public international law. They should thus be treated uniformly by contracting States and in accordance with the interpretive rules of the Vienna Convention on the Law of Treaties (1969). That includes consideration of the historical context of the treaty, including related treaty instruments and the travaux préparatoires to the treaty. See Evans v Air Canada [2025] HCA 22; 99 ALJR 941 at [6].

39    Article 31 of the Vienna Convention provides that a treaty must be interpreted in good faith, in accordance with the ordinary meaning of the terms in their context and in the light of the object and purpose of the treaty. Article 32 provides that interpretative assistance may be gained from extrinsic sources in order to confirm the meaning resulting from the application of Art 31, or to determine the meaning when interpretation according to Art 31 “leaves the meaning ambiguous or obscure” or “leads to a result which is manifestly absurd or unreasonable”. See Kingdom of Spain v Infrastructure Services Luxembourg S.à.r.l. [2023] HCA 11; 275 CLR 292 at [38]-[39].

40    Neither side of the case referred to the travaux préparatoires as a relevant source for the resolution of the questions of interpretation of the Convention presented in the case. The primary judge and the parties referred to the terms of the Convention and relevant international case law from other contracting States.

41    Article 1 of the Montreal Convention relevantly provides as follows:

Article 1—Scope of Application

1.     This Convention applies to all international carriage of persons, baggage or cargo performed by aircraft for reward. It applies equally to gratuitous carriage by aircraft performed by an air transport undertaking.

42     Article 17 relevantly provides as follows:

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.

(Emphasis added.)

43    Article 29 provides as follows:

Article 29—Basis of Claims

In the carriage of passengers, baggage and cargo, any action for damages, however founded, whether under this Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in this Convention without prejudice to the question as to who are the persons who have the right to bring suit and what are their respective rights. In any such action, punitive, exemplary or any other non-compensatory damages shall not be recoverable.

44    It is common ground that Art 17 imposes strict liability on carriers. That is to say, if a passenger suffers a bodily injury in an “accident ... on board the aircraft or in the course of any of the operations of embarking or disembarking”, the carrier will be liable for damages subject to the limitations on the amount of compensation provided for in Art 21. It is also common ground in respect of such an accident that no other claim can be brought against the carrier however that claim is framed.

45    In Evans (at [9]), the High Court emphasised the importance of understanding the Montreal Convention in its context, which includes understanding its development from its predecessor, the Convention for the Unification of Certain Rules Relating to International Carriage by Air (1929) (Warsaw Convention), and the various amendments to that Convention over the years. It is also important to bear any differences between the Warsaw and Montreal Conventions in mind when considering the cases.

46    For present purposes there is no material difference between Arts 1 and 17 of each of those Conventions – Art 1(1) in both cases uses the wording “international carriage of persons ... by aircraft” and Art 17 in both cases uses the wording “on board the aircraft or in the course of any of the operations of embarking or disembarking.” Insofar as Art 17 and appeal ground 1 is concerned, that means that it is not necessary to distinguish between cases that were decided under the Warsaw Convention and those decided under the Montreal Convention – neither side of the present case raises any point about that.

47    Regarding appeal ground 2, the equivalent provision in the Warsaw Convention to Art 29 of the Montreal Convention is Art 24. As recognised by the primary judge (PJ [72]), it was held in Stott v Thomas Cook Tour Operators Ltd [2014] AC 1347 at [31] that the effect of Art 29 of the Montreal Convention is substantially the same as that of Art 24 of the Warsaw Convention. Neither side of the case makes any submission to the contrary.

48    Section 9E of the Civil Aviation Act, which further underscores the exclusivity principle, is as follows:

Subject to section 9F, the liability of a carrier under the Convention, in respect of personal injury suffered by a passenger that has not resulted in the death of the passenger, is in substitution for any civil liability of the carrier under any other law in respect of the injury.

Ground 1: the temporal scope of Art 17

The relevant facts at this stage

49    It is to be kept in mind that the Art 17 Convention claims are only brought by the first, third and fourth appellants. Thus, appeal ground 1 concerns only those appellants.

50    The 2FASOC pleads the key facts identified at [35] above which are relevant to whether it might reasonably be concluded that the accidents which they say that they suffered occurred in the course of any of the operations of embarking or disembarking.

51    Also potentially relevant is that transcripts of interviews of the appellants by the Australian Federal Police (AFP) reveal that there were possibly a number of ambulances and that they were “kind of, like, under the plane.”

The reasoning of the primary judge

52    The primary judge (at PJ [40]-[42]) identified a three-pronged inquiry referred to in Kotsambasis v Singapore Airlines Ltd (1997) 42 NSWLR 110 at 118-119 and extracted from McCarthy v North West Airlines Inc 56 F3d 313 (1st Cir 1995) at 316-317 as being applicable to the assessment of whether the particular “accident” occurred “in the course of any of the operations of embarking or disembarking”. That inquiry focuses on:

(1) the passenger’s activity at the time of injury; (2) his or her whereabouts when injured, and (3) the extent to which the carrier was exercising control at the moment of injury ...

53    The primary judge concluded that the relevant “accident” was the invasive examinations of the first, third and fourth appellants (PJ [57]). His Honour held that the invasive examinations did not take place “on board the aircraft” and that the appellants do not have reasonable prospects of establishing that they took place “in the course of any of the operations of embarking or disembarking” the aircraft (PJ [59]). His Honour reasoned that the “operations of disembarking” would extend to the means by which a passenger was conveyed from an aircraft to an airport terminal (PJ [61]), but that it is not reasonably arguable that “the process of disembarking would extend to an invasive examination conducted by a nurse in an ambulance on the tarmac at the direction of officers of a State instrumentality, as part of a police operation, to determine the identity of the mother of an abandoned newborn baby” (PJ [62]). His Honour held that the liability of an airline in Art 17 “cannot extend to an invasive examination undertaken by a State enforcement authority in an ambulance” (PJ [63]).

54    His Honour was satisfied that the factual matters identified by the appellants to be determined at trial such as the distance between the ambulance and the aircraft, the time that had elapsed between the invasive examinations and re-embarkation or the particular route taken by the appellants back to the aircraft could not rationally assist in determining whether the accident took place in the course of the operations of disembarking or embarking (PJ [64]). His Honour reasoned that although the security operation undertaken at the direction of the officers of the MOI necessarily included disembarkation and embarkation, that does not carry with it any implication that the accident occurred in the course of the operations of disembarkation or embarkation (PJ [65]).

55    Further, his Honour reasoned that any requirement that the appellants were not permitted to reboard the aircraft unless the invasive examinations were performed cannot by itself have the effect of making that requirement an act in the course of any of the operations of embarking or disembarking (PJ [66]). His Honour rejected the submission by the appellants that Qatar Airways was “in a position to direct the activities of its subsidiary MATAR and there is no evidence that it made any effort to do so” on the basis that it does not arise above mere conjecture or speculation (PJ [67]). His Honour reasoned that facts extracted from statements made by the appellants to the AFP that one of the persons who directed the appellants had the word “security” on their back, that it was “someone from the airport” and not an armed guard who directed one of the appellants into the ambulance and that a “Qatar air hostess” directed one of the appellants onto the tarmac, provide evidence of the involvement of Qatar Airways flight crew and potentially of MATAR security contractors in the MOI police operation; but held that this was not evidence from which it could be concluded that Qatar Airways was in a position to direct the operations of its subsidiary, MATAR, in that operation (PJ [67]).

56    Finally on this aspect of the case, his Honour was satisfied based on evidence adduced by MATAR that the security operation was directed by officers of the MOI and that the “nurse” was not an employee of either Qatar Airways or MATAR. His Honour held that the proposition that Qatar Airways was able to exert any relevant control over the officers of the MOI conducting the police operation or the nurse in the ambulance can fairly be characterised as “fanciful, trifling, implausible, improbable, tenuous or one that is contradicted by all the available documents or other materials”, quoting Reeves J in Australian Securities and Investments Commission v Cassimatis [2013] FCA 641; 220 FCR 256 at [47] (PJ [68]).

The parties’ contentions

57    Appeal ground 1 asserts that the primary judge erred in concluding that the first, third and fourth appellants are not able to bring a claim against Qatar Airways under the Montreal Convention on the basis that they do not have reasonable prospects of establishing that their invasive examinations took place “in the course of any of the operations of embarking or disembarking” within the meaning of Art 17(1).

58    The appellants submit that the question of whether the examinations took place “in the course of any of the operations of embarking or disembarking” for the purpose of Art 17(1) involves serious and contested questions of law and fact that should be decided at trial, relying on Spencer v Commonwealth [2010] HCA 28; 241 CLR 118 at [24]-[26] per French CJ and Gummow J and Cassimatis at [46]-[50]).

59    The appellants submit, with reference to the authorities, that there is a significant question of law as to the meaning of the relevant phrase in Art 17(1) which is inappropriate for summary determination. They submit that the approach of the primary judge erroneously isolated the events that took place in and about the ambulance from the entirety of the incident which commenced with the aircraft returning to the gate and included female passengers being directed off the aircraft for the sole purpose of requiring them to undergo a non-consensual intimate and invasive procedure prior to departure.

60    The appellants submit that the Court should not give summary judgment where the applicant has more than a “fanciful” prospect of success (Spencer at [25]), and that their claim under Art 17(1) meets this threshold because there are a number of contested factual matters more properly resolved at trial, which will inform the Court’s assessment of what is comprehended in the phrase “embarking and disembarking”. They include: the information given by the airline’s employees or contractors to the women as to the reason they were being required to exit the aircraft; the instructions given to the women whilst they were exiting and proceeding to the ambulance on the tarmac; the state of knowledge of the airline employees or contractors involved as to the reason why the women were being required to exit the aircraft, and their knowledge of what was to occur and what was occurring in the ambulance; the route the women took between the aircraft and the ambulance; the location of the ambulance on the tarmac relative to the aircraft; the aircraft captain’s authority to control the presence of the ambulance in the vicinity of the aircraft; the time that elapsed between the examinations and the women re-entering the aircraft; and the extent of control exercised over the women by airline staff or contractors.

61    The respondents submit, in particular with reference to the three-pronged inquiry identified in Kotsambasis at 118-119, that there is no controversy in the legal principles to be applied. They submit that the factual matters identified by the appellants do not introduce any real question the determination of which would affect the Convention claim, and that those matters are no more than hypothetical statements with no foundation in the pleaded case or in the evidence.

62    The respondents point to the primary judge’s findings about the nature of the pleaded accident (PJ [62], [66]); the nature of the investigation that led to the accident (being a police operation into the identity of the mother of an abandoned newborn baby, which can be contrasted with security screening as part of the embarking or disembarking process: PJ [62]); and the inability of the airline to control the MOI officers conducting the police operation or the “nurse” in the ambulance (PJ [67]-[68]). They submit that those are matters that could be determined by taking the pleadings at their highest and by reference to the unanswered or unanswerable factual propositions identified by the primary judge (at PJ [251]) in reliance on MATAR’s evidence.

63    In reply, the appellants submit that the phrase “in the course of any of the operations of embarking or disembarking” is a broader concept than the concept of “disembarkation”. They submit that the examinations by the nurse “bore a purposive, spatial and temporal relationship to the women re-entering the plane, to continue their journey.”

Consideration

64    “The exercise of powers to summarily terminate proceedings must always be attended with caution”; they “should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried”: Spencer at [24] per French CJ and Gummow J, quoting Fancourt v Mercantile Credits Ltd [1983] HCA 25; 154 CLR 87 at 99. Summary disposition is available where “the pleadings disclose no reasonable cause of action and their deficiency is incurable” and includes cases in which “there is unanswerable or unanswered evidence of a fact fatal to the pleaded case and any case which might be propounded by permissible amendment”: Spencer at [22] per French CJ and Gummow J. Although the test to be applied has been expressed in various ways, “all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way”: Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; 226 CLR 256 at [46], quoting Agar v Hyde [2000] HCA 41; 201 CLR 552 at [57].

65    In Kotsambasis, Meagher JA (with whom Powell and Stein JJA agreed) cited the three-pronged inquiry (quoted at [52] above) and then reasoned that “location, activity and control are useful in determining whether, on the facts of any given case, an accident can be regarded as having occurred in the process of embarking or disembarking”, but that they may not be the only factors and that in the end “the answer will lie in the facts of the particular case” (at 119). This was appreciated by the primary judge: see PJ [41].

66    The appellants point to later United States authority than that cited in Kotsambasis that has applied a four-factor inquiry, namely King v American Airlines Inc 284 F3d 352 (2d Cir 2002) at 359. There, the passengers brought a discrimination claim against the airline for having been “bumped” from a flight on account of their race. They had boarded the vehicle that was to transport them from the terminal to the aircraft when agents of the airline confiscated their boarding passes and informed them that they were being bumped from the flight involuntarily. Judge Sotomayor, with whom Jacobs and Parker JJ agreed, identified the four factors as: “(1) the activity of the passengers at the time of the accident; (2) the restrictions, if any, on their movements; (3) the imminence of actual boarding; (4) the physical proximity of the passengers to the gate.”

67    The Court in King cited other cases that had applied that four-factor inquiry, including:

(1)    Day v Trans World Airlines Inc 528 F2d 31 (2d Cir 1975) at 33-34 per Kaufman CJ, Smith and Feinberg JJ agreeing, which held that passengers who had surrendered tickets, passed through passport control, entered an area reserved exclusively for departing passengers, and assembled at the departure gate in readiness for departure fell within the scope of Art 17;

(2)    Ricotta v Iberia Lineas Aereas De Espana 482 FSupp 497 (EDNY 1979) at 500 per Costantino J which ruled that a passenger injured in a bus transporting passengers from the aircraft to the terminal was injured in the course of disembarking the aircraft (later affirmed by the 2nd Circuit in Ricotta v Iberia Lineas Aereas De Espana 633 F2d 206 (2d Cir 1980)); and

(3)    Buonocore v Trans World Airlines Inc 900 F2d 8 (2d Cir 1990) at 10 per Timbers J, Meskill and Altimari JJ agreeing, which held that a passenger did not fall within the scope of Art 17 in circumstances where he had obtained his boarding pass and seat assignment, but was still in a public area of the airport and had not gone through immigration control or security inspection.

68    It is plain from those authorities that whether the relevant “accident” occurred within the “course of any of the operations of embarking or disembarking” is an evaluative judgement involving questions of fact and degree. It is particularly illustrated by Day, referred to above, and Evangelinos v Trans World Airlines Inc 550 F3d 152 (3d Circ 1977), which adopted a three-pronged inquiry. The decisions are of different Circuit Courts of the United States Court of Appeals concerning the same “accident”. On 5 August 1973, the transit lounge of the Hellinikon Airport in Athens, Greece was the scene of a terrorist attack on the passengers of a particular flight bound for New York. At the time of the attack, the passengers had already completed all of the steps necessary to boarding the aircraft except undergoing physical and handbag searches and physically proceeding from the search area to the aircraft some 250m away. Immediately after the flight was announced, the passengers were instructed to form two lines in front of the departure gate. While all but a handful of passengers were standing in those lines awaiting the search procedure, two terrorists fired bursts of automatic weapons fire in the general direction of the passenger queues and hurled hand grenades that exploded in the vicinity of the passengers. Despite the airline having no control over the actions of the terrorists who caused the injuries, both Courts held that the “accident” occurred within the scope of Art 17 of the Warsaw Convention.

69    The point is that, contrary to the submission of Qatar Airways, the authorities are not “settled” – three or four factor inquiries are used, and in any event a range of other factors may be relevant in any particular case. His Honour did not purport to determine or express a definitive test. Indeed, it would have been wrong to do so. There are a variety of facts which may be relevant to the range of factors that must be considered. Some of them include assessments of degree, for example questions of control, both of the passengers and the “accident”, restrictions on the passengers’ movement and proximity of time and space.

70    I respectfully consider that the primary judge erred in summarily dismissing the Art 17 claims. The matters of fact and degree referred to above are not apt to be decided at the stage of summary dismissal. Further, his Honour placed significant emphasis on the security operation being under the control of the MOI, but as Day and Evangelinos illustrate, the relevant events can occur some time and distance prior to boarding and beyond the control of not only the airline but of any authorities but still be within the scope of Art 17 – in those cases, the airline obviously had no control over the terrorists and its “control” over the passengers was only that it had called on the passengers to queue at the departure gate. It is also not of any significance that the “nurse” who in the most immediate sense caused the “bodily injury” was not under the control of the airline – the question is whether that “accident” occurred in the course of any of the operations of embarking or disembarking.

71    As the primary judge reasoned in relation to the exclusivity principle, the appellants had passed through passport control and pre-boarding security, their luggage had been loaded and remained on the aircraft, they had not reached their intended destination, nor had they passed back through passport control (at PJ [80]). Other considerations can be added to those. The passengers had surrendered themselves to the authority and control of the airline – it can be inferred that once they went through the boarding gate they were under the control of the airline and subject to the directions of its staff. The deplaning as directed by the flight crew apparently under orders of the MOI was not the intended or ordinary disembarkation of the flight and it did not involve the appellants passing back through the boarding gate and towards the baggage claim; rather they remained, in effect, in space and time, between the boarding gate on departure and the arrival gate in Sydney. Indeed, they deplaned only with their passports and possibly their phones on the clear expectation that they would be returning again shortly, even leaving their spouses and other travel companions behind. At least one of them was still in her airline issue pyjamas. It was, in effect, a condition of their re-boarding that they submit themselves to what occurred to them in the ambulance.

72    In those circumstances, there is no sufficiently high degree of certainty that what occurred to the passengers in the ambulance could not be concluded, after all relevant evidence has been adduced and evaluated, as having taken place during the course of the operations of embarking and disembarking.

73    The primary judge’s reasoning has at its heart the idea that when the examinations took place the passengers had disembarked from the aircraft, completed the course of all the operations of disembarking and not yet commenced the course of any of the operations of embarking again. I respectfully consider that that approach, on a consideration of all the evidence in due course, may be too narrow. It may be, on an assessment of the evidence adduced at trial, that the correct conclusion is that once the conventional course of the operations of embarkation had begun and no conventional disembarkation had yet been completed, the passengers were still engaged in the course of the process of embarkation. That assessment may depend on matters such as those identified by the appellants and set out at [60] above.

74    For those reasons, I would allow appeal ground 1. The summary dismissal of the Art 17 claims should be set aside and those claims should go to trial.

Ground 2: the exclusivity principle

The pleaded facts

75    The three appellants who assert Convention claims against Qatar Airways assert their negligence claims only in the alternative. That is, they accept that if the accident is ultimately held to be within the temporal scope of Art 17, then Art 29 operates to exclude any other basis for a claim. The other two appellants, being the second and fifth appellants, do not assert any Convention claim so their claims in negligence are their only claims against the airline. It is consequently in their interests to contend that their claims are not within the temporal scope of Art 17. That difference between the appellants means that at trial they will have to be separately represented, but since the summary dismissal – and hence the appeal – is addressed at the level of whether the respective claims can reasonably possibly succeed at trial, not whether they will, the difference does not matter for present purposes.

76    The appellants plead that Qatar Airways is vicariously liable for the acts and omissions of its employees and of persons akin or analogous to employees including its agents acting within the scope of their actual or ostensible authority. They also aver that Qatar Airways owed each of them a duty of care to take all reasonable steps to avoid or minimise the risk of them suffering harm during the course of the flight including in the airport terminal, embarking and disembarking the aircraft, on the terminal tarmac and throughout the flight.

77    The appellants claim that in circumstances where its corporate subsidiary MATAR was the contracted manager and operator of the airport, Qatar Airways breached its duty of care to each of them. The alleged breaches include the following, some of which are expressed to be in the alternative to others:

(1)    Failing to take any or adequate steps to ascertain the reason for any direction, request or requirement that female passengers exit the aircraft;

(2)    Directing that all female passengers exit the aircraft, knowing that the female passengers would be exposed to the risk of invasive intimate inspections or examinations;

(3)    Directing that all female passengers exit the aircraft, being reckless as to the reason for making that direction;

(4)    Announcing that all female passengers were required to exit the aircraft, regardless of the age or health of these passengers and regardless of whether they were accompanied by infant children;

(5)    Failing to provide the appellants with any or any adequate explanation as to why they had to exit the aircraft;

(6)    Directing the appellants from the aircraft to a departure lounge within the airport terminal;

(7)    Directing the fifth appellant into a lift and down to a lobby near the tarmac;

(8)    Failing to take any or adequate steps to prevent the first to fourth appellants from being directed onto the tarmac and into the ambulance;

(9)    Failing to take any or adequate steps to prevent the first to fourth appellants from being subjected to an intimate examination or inspection; and/or

(10)    Failing to take any or adequate steps to prevent the fifth appellant from being directed onto the tarmac and towards the ambulance.

The reasoning of the primary judge

78    Having concluded that the “accident” alleged to have been suffered by the first, third and fourth appellants did not occur during the course of any of the operations of embarking or disembarking, his Honour then considered whether the claims of all the appellants concern injuries sustained during “the international carriage of a passenger by air” (PJ [79]). His Honour concluded that the particulars provided by the appellants for their claims for damages against Qatar Airways are all directed at acts or omissions of Qatar Airways that occurred on board the aircraft, in the course of the operations of disembarking or embarking the aircraft or in an ambulance on the tarmac. His Honour concluded that at the time that the invasive examinations in the ambulance were conducted, the international carriage of the applicants by air had not ceased. The critical issue was therefore whether the exclusivity principle extends to any personal injury suffered by a passenger in the “course of international carriage by air” (the broad construction) or only to injuries that would fall within the temporal scope of Article 17(1) (the narrow construction) (PJ [81]).

79    Ultimately, his Honour held that what he described as the “broader construction” is correct, namely that the exclusivity principle extends to any personal injury suffered by a passenger in the “course of international carriage by air” (PJ [81]-[82]). His Honour identified five reasons in support of that conclusion.

80    First, his Honour reasoned that there is no textual support in Art 29 for any limitation on the breadth of the exclusivity provision (PJ [83]).

81    Secondly, his Honour reasoned that not reading down the breadth of the text of Art 29 is consistent with the object and purpose of the Warsaw and Montreal Conventions (PJ [84]). His Honour cited Sidhu v British Airways plc [1997] AC 430, in particular at 447 where it was said that “[t]o permit exceptions, whereby a passenger could sue outwith the Convention for losses sustained in the course of international carriage by air, would distort the whole system, even in cases for which the Convention did not create any liability on the part of the carrier. Thus the purpose is to ensure that, in all questions relating to the carrier’s liability, it is the provisions of the Convention which apply and that the passenger does not have access to any other remedies, whether under the common law or otherwise, which may be available within the particular country where he chooses to raise his action.” (PJ [89].)

82    Thirdly, his Honour reasoned that neither Sidhu nor Parkes Shire Council v South West Helicopters Pty Ltd [2019] HCA 14; 266 CLR 212 leaves open the possibility that an action for damages with respect to an act or omission that occurred in the course of international carriage by air can be advanced outside the scope of Art 17 (PJ [90]).

83    Fourthly, his Honour reasoned that the analysis undertaken in Sidhu has been approved and followed in other appellate decisions of courts around the world, including in Australia and in the United States (PJ [104]). His Honour cited United Airlines Inc v Sercel Australia Pty Ltd [2012] NSWCA 24; 289 ALR 682 (PJ [105]) and presumably also had in mind El Al Israel Airlines Ltd v Tsui Yuan Tseng 525 US 155 (1999) which he considered under his next point (PJ [108]).

84    Finally, his Honour held that none of Tseng, King or Stott, which had been relied on by the appellants, provide any substantive support for the narrow construction that would have the exclusivity principle operating only in relation to the temporal scope of Art 17 (PJ [108]). His Honour reasoned that the examples given in those cases of an injury prior to embarkation (Tseng), an accident on an escalator at the entrance to an airport terminal (King) or a complete cause of action before boarding an aircraft (Stott) were not directed at an event that “occurred in the course of international carriage by air. In each case the international carriage by air had not yet begun, as each was prior to any process of embarkation.” (PJ [116].)

85    On that basis, the exclusivity principle provided a complete answer to the claims of all the appellants against Qatar Airways (PJ [140]).

The parties’ contentions

86    The appellants advance three arguments in support of their ultimate contention that the primary judge erred in summarily dismissing their claims against Qatar Airways on the basis that the exclusivity principle in Art 29 of the Montreal Convention is a complete answer to those claims.

87    First, the appellants submit that the extent of the exclusivity principle is a question of law that is neither straightforward nor trite and that it should therefore not be resolved summarily (citing Cassimatis at [48]).

88    Secondly, the appellants submit that the exclusivity principle only precludes domestic law actions for damages that are within the temporal scope of Art 17(1). They submit that the United States courts have consistently reached that conclusion. They cite Tseng, King and Thede v United Airlines Inc 796 FedAppx 386 (9th Cir 2020) in that regard. They also submit that Stott supports the narrow construction and that none of Sidhu, Parkes or Sercel is against that.

89    Thirdly, the appellants submit that the primary judge erred in concluding that each of the particulars of negligence against Qatar Airways relates to some aspect of the international carriage of the applicants by air. The essence of the argument is that if the primary judge’s conclusion that the examination of three of the appellants did not take place in the course of any of the operations of embarking or disembarking, then the alleged acts and omissions of negligence being the failure to take steps to prevent those examinations and directing the appellants into and within the terminal also did not occur in the course of international carriage by air. The appellants submit that the primary judge’s conclusion is inconsistent with his conclusion in the immunity case (at [140], [146]) that the alleged conduct of QCAA did not come within the commercial transaction exception in s 11 of the Foreign States Immunities Act 1985 (Cth).

90    Qatar Airways submits that the primary judge’s conclusion and reasoning is correct. It submits that the scope of the exclusivity principle was properly resolved summarily, there being no factual controversies that inform that issue. It submits that Tseng, Parkes and Sidhu all support the primary judge’s conclusion and that Stott does not stand against it.

Consideration

Introduction

91    It is common ground that a claim that comes within the temporal scope of Art 17, namely if the accident that caused the claimed damage “took place on board the aircraft or in the course of any of the operations of embarking or disembarking”, then Art 17 is the only available basis to claim against the airline. Thus, claims for damage not sustained by the death or bodily injury of a passenger, such as the claims of the second and fifth appellants, are excluded if they are within the temporal scope of Art 17. Similarly, if, contrary to the primary judge’s summary dismissal decision, the claims of the first, third and fourth appellants are within the temporal scope of Art 17 (which is a possible result at trial following my conclusion on ground 1 of the appeal) then the only claims that they can succeed on are those within its substantive scope (ie strict liability “for damage sustained in case of death or bodily injury of a passenger” caused by an “accident”), all other causes of action being excluded.

92    The difference between the parties is thus simply whether the exclusivity principle arising from Art 29 applies only with respect to claims that come within the temporal scope of Art 17 (the narrow construction referred to by the primary judge) or whether it applies also to claims outside the temporal scope of Art 17 but nevertheless within the scope of “international carriage by air” (the broad construction referred to and adopted by the primary judge). If the broad construction is correct, the result will be that the Convention excludes completely all and any claims against airlines that are outside of the temporal scope of Art 17 but which are nevertheless properly characterised as claims arising from “international carriage by air”.

93    It should be observed that the circumstance in which this issue has to be considered is highly unusual and somewhat artificial. The primary judge accepted that “international carriage by air” commences when embarkation commences (PJ [116]) and that it can (and, in this case, did) continue even though, as he held, disembarkation is completed and re-embarkation has not yet commenced. So, in one respect his Honour held that international carriage by air and the temporal scope of Art 17 are coextensive, being the commencement of each, but in another respect they are not coextensive, being that the one can be interrupted but not the other. For the reasons that follow, my view is that the answer to the scope of the exclusivity principle is to be found in Arts 17 and 29 and not in the phraseology of “international carriage by air”; the exclusivity principle in respect of passenger claims is coextensive with the temporal scope of Art 17.

94    If it is ultimately decided at trial that the various claims are within the temporal scope of Art 17, then all the non-Convention claims will be excluded. There does not appear to be any dispute about that. Ground 2 of the appeal is only of any relevance if it is decided at trial, as the primary judge decided on a summary basis, that the claims do not fall within the temporal scope of Art 17. Consideration of ground 2 therefore proceeds on the premise that the claims are outside the temporal scope of Art 17 even though that may turn out to be a false premise.

95    The phraseology of “international carriage by air” appears to have been adopted by the primary judge from the reasoning of Lord Hope of Craighead in Sidhu at 447 (PJ [89]) although it finds its origin in the full title of the Warsaw Convention, ie the Convention for the Unification of Certain Rules relating to International Carriage by Air, and Art 1 which provides that the Convention “applies to all international carriage of persons ... by aircraft for reward.” The Montreal Convention has an almost-identical title – substituting “relating to” with “for” – and it has the same wording in Art 1 as quoted above.

96    The primary judge’s reasoning and the parties’ submissions are based principally on the cases. It is therefore necessary to consider them.

97    Sidhu, Tseng, King and Sercel were all decided in relation to the Warsaw Convention. The recent unanimous judgment of the High Court in Evans held at [12], citing Sidhu, Tseng and Sercel, that Arts 17 and 24 of the Warsaw Convention “created an exclusive regime for damages for personal injury or death ‘if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking’”, ie not that the exclusive regime was on the broader basis of “international carriage by air”. Although not ratio, that holding might be characterised as “seriously considered dicta” of a majority of the High Court and thus binding on this Court: Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89 at [134]. Taken together with the reasoning in Stott that there is no difference between the Warsaw and Montreal Conventions with regard to the exclusivity principle (see above at [47]), and the parties not having contended for any such difference, that might be thought to be the end of the point. That is, it might be thought that the law, as expressed by the High Court in Evans (noting that Evans was decided after the primary judgment) is that the scope of the exclusivity principle is coextensive with the temporal scope of Art 17 and ground 2 must be upheld.

98    However, Evans was not about the exclusivity principle and its formulation as quoted above is far removed from what was in issue in that case. The dictum in question is also not the expression of long-established authority. In those circumstances, it may be that that formulation is not properly characterised as seriously considered dicta of a majority of the High Court: Pape v Commissioner of Taxation [2009] HCA 23; 238 CLR 1 at [473] per Heydon J; Harvard Nominees Pty Ltd v Tiller [2020] FCAFC 229; 282 FCR 530 at [54] per Lee, Anastassiou and Stewart JJ. It is therefore necessary for this Court to make its own assessment of the question and in particular the cases referred to by the parties and the primary judge. It is convenient to do so in chronological order.

The authorities on the exclusivity principle

99    The first case is Sidhu. It concerned carriage under tickets from London to Kuala Lumpur via Kuwait. When the plane landed in Kuwait to refuel, which was within hours of the Iraqi invasion of Kuwait in August 1990, the appellants were detained by Iraqi soldiers, first at the airport, then in Kuwait City and later in Baghdad. There were two cases before the House of Lords on appeal. In the Scottish case on appeal from the Court of Session, the appellant (the pursuer at first instance) had brought claims in negligence and under Art 19 for delay. Both claims were dismissed below as unsustainable, the common law claim on the basis that the Convention is exclusive. In the English case on appeal from the Court of Appeal, the appellants (the plaintiffs at first instance) brought their claims in negligence outside the two-year limit imposed by the Convention, so no Convention claim was available.

100    The leading speech in the House of Lords was given by Lord Hope of Craighead, with whom the other members of the Appellate Committee agreed. The “issue” was put in two different ways. First, as whether the Warsaw Convention provides the exclusive cause of action and remedy in respect of claims for loss, injury and damage “sustained in the course of, or arising out of, international carriage by air” (at 435A, 437G, 441F). Secondly, it was framed as whether an action for damages may be brought by a passenger against the carrier outside the Convention “in the cases covered by article 17 – which is the issue in the present case” (at 447C-D). There was no discussion of the difference between the temporal periods variously described as “international carriage of persons, baggage or cargo performed by aircraft for award” in Art 1(1) from whence the expression “international carriage by air” was drawn, on the one hand, and “on board the aircraft or in the course of any of the operations of embarking or disembarking” in Art 17, on the other.

101    The breadth of the first formulation of the issue to be decided in the case is clear, as is the language of some expressions of what was determined. That includes that the purpose of Art 17 is to prescribe the circumstances in which a carrier will be liable in damages to the passenger “for claims arising out of his international carriage by air” (at 447E) and that “[t]o permit exceptions, whereby a passenger could sue outwith the Convention for losses sustained in the course of international carriage by air, would distort the whole system, even in cases for which the Convention did not create any liability on the part of the carrier” (at 447G).

102    However, there are aspects of Lord Hope’s reasoning that support the narrower reading. For example, the reasoning proceeds at least in part with reference to Art 24 (which, as mentioned above, is the Warsaw Convention equivalent to Art 29 of the Montreal Convention) as providing that, “in the cases covered by” Arts 17, 18, and 19 any action for damages, however founded, can only be brought subject to the conditions and limits set out in the Convention (eg at 439B-C and 447D). The wording of “covered by”, which is taken directly from Art 24(2) with reference to Art 17, could be a reference to the substantive scope of liability (ie “death or injury of a passenger or any other bodily injury suffered by a passenger” in an “accident”) or the temporal scope of liability (ie “if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking”), or both.

103    It is important to note that in Sidhu it was “common ground between the parties that neither the pursuer nor the plaintiffs have a claim against the respondents under article 17 of the Convention” (at 440H). Although the Appellate Committee did not think it necessary to explore why that was so (440H), it recorded that in the Scottish case there was no accident or bodily injury (441A-B), and in the English case it had been conceded that there was no accident on board the aircraft or in the course of embarkation but bodily injury was alleged (441B). Whether or not the claims were nevertheless regarded as being within the temporal scope of Art 17 was not discussed in terms, save that it was said that the alleged breaches of duty all related to decisions taken while the aircraft was in the air between London and Kuwait (at 440G-H).

104    Because it is not clear from the case whether the claims in question were “covered by Art 17” in the sense of being within its temporal scope, it is not possible to identify whether the ratio of the decision is in respect of such claims or whether it is in respect of the broader description of claims “sustained in the course of, or arising out of, international carriage by air”. The decision is indeterminate in that respect although the conclusionary language is certainly expressed in the broader way and it may be that the English claim was taken to be outside the temporal scope of Art 17 in which event the case would be definitive in having adopted the broader view of exclusivity. It would appear that the case was presented as having to decide a point that is now uncontroversial, which was whether the Convention offered an additional basis of liability to any basis that may exist in domestic law, or whether it offered the only basis with any domestic law claims being excluded. It decided in favour of the latter without grappling with the scope of application of that exclusivity.

105    The next case is Tseng, a decision of the United States Supreme Court. The respondent was subjected to an intrusive security search at the airport in New York before she boarded an El Al Israel Airlines flight to Tel Aviv. She claimed against the airline in tort. Since her claim was not for bodily injury, but only for “psychic or psychosomatic injuries”, she had no claim under Art 17 (at 160 and 162 with reference to Eastern Airlines Inc v Floyd 499 US 530 (1991) where that point was decided). It was common ground that the relevant episode occurred “in international transportation in the course of embarking” (at 167).

106    Justice Ginsburg delivered the opinion of the Court (Stevens J dissenting). It was held that “recovery for a personal injury suffered ‘on-board [an] aircraft or in the course of any of the operations of embarking or disembarking,’ [citing Art 17] if not allowed under the Convention, is not available at all” (at 161). That is a precise expression of the narrow construction of the exclusivity principle, ie exclusivity is coextensive with the temporal scope of Art 17.

107    With reference to the concern that a broad reading of exclusivity provided by the Convention would exclude a passenger claim for injury caused by a malfunctioning escalator in the airline’s terminal, the Court accepted the submission of the United States Government as amicus curiae that “the Convention addresses and concerns, only and exclusively, the airline’s liability for passenger injuries occurring ‘on board the aircraft or in the course of any of the operations of embarking or disembarking’” (at 171-172). That is a further definitive statement by the Court as to the temporal scope of the exclusivity principle as part of its reasoning to its conclusion that claims that are not allowed by Art 17 because they are not death or bodily injury claims are not allowed at all.

108    The case is therefore clear authority for the narrow view.

109    Next is King. As a United States federal intermediate appellate decision, King naturally followed Tseng. Judge Sotomayor, writing for the Court, held that Art 17 “directs us to consider when and where an event takes place in evaluating whether a claim for an injury to a passenger is preempted” (at 360). The Court then quoted Tseng in saying that “[a] carrier … is indisputably subject to liability under local law for injuries arising outside of [the substantive scope of the Convention]: e.g., for passenger injuries occurring before any of the operations of embarking or disembarking” (at 361). That is to say, the exclusivity principle operates in space and time with reference to the scope of Art 17. King therefore confirms the understanding of Tseng recorded above.

110    The next relevant authority is Sercel, a decision of the New South Wales Court of Appeal. The passenger, on employment by the plaintiff, was on a flight from Sydney to Houston when, in the process of landing at Houston, he was hit on the head by a hard object that detached from the interior of the aircraft. Through its insurer, the plaintiff made workers’ compensation payments to the passenger and then sought to recover those from the airline. The airline maintained that the claim was out of time by reference to Art 29 of the Warsaw Convention as subsequently amended by the Hague and Montreal Protocols. That contention was rejected by the primary judge and on appeal.

111    The case does not decide the exclusivity question. However, during the process of reasoning Allsop P (with whom Macfarlan JA and Handley AJA agreed) understood Sidhu and Tseng to have decided the same thing, namely that under the Warsaw Convention the rights of the passenger to damages were exclusively to be found in the Warsaw Convention; one did not have access to other causes of action “if one fell outside Art 17” (at [97]). President Allsop also said that that expression of the matter by both the House of Lords and the Supreme Court reflects Australian law (at [98]). Thus, Tseng was understood as being consistent with Sidhu, and both were said to reflect Australian law, but the point in issue in the present case was not pertinently addressed. Falling “outside Art 17” could certainly have been intended to refer to claims outside the substantive scope of Art 17, ie no accident and/or no death or bodily injury. It does not necessarily also refer to claims outside the temporal scope of Art 17.

112    Then there is Stott which is a Montreal Convention case decided by the United Kingdom Supreme Court. A statutory discrimination claim was brought by a disabled person against the airline for the passenger’s humiliating treatment boarding and on board the aircraft, including not being seated next to his wife who was required to take care of him. The question was whether that claim was barred as not being a claim for death or bodily injury under Art 17 of the Montreal Convention and being within the temporal scope of Art 17, ie during the operations of embarking and on the aircraft.

113    Lord Toulson JSC, with whom the rest of the Court agreed, compared the Warsaw and Montreal Conventions and concluded that there is no material difference between them as to their scope of application (at [25]), their provisions for liability for the death or bodily injury of passengers (at [26]) and exclusivity (at [31]). After describing what Sidhu decided (at [34]), Lord Toulson considered Tseng in some detail (at [36]-[40]), concluding that Tseng held that the Convention’s pre-emptive effect on any claim under local law (ie not under the Convention) does not extend to “passenger injuries occurring before the operation of embarking” (at [40]). That is to say, the temporal scope of the Convention with regard to exclusivity commences with the operation of embarking and not with the commencement of “international carriage by air”.

114    Lord Toulson JSC identified that the substantive requirements for liability under Art 17 are physical injury and accident (at [38]). Mr Stott’s claim did not fall within the substantive scope of the Convention and was therefore barred if it was within the Convention’s temporal scope (at [59], [61]). It was held that the temporal scope relates to the time and place of the particular event (at [61], approving the reasoning of Judge Sotomayor in King; see also at [42] – “the preemptive scope of the Convention depends not on the qualitative nature of the act or omission giving rise to the claim but on when and where the salient event took place”). The claim was particularised by reference to the humiliation, distress and injury to Mr Stott’s feelings which he had suffered exclusively in the course of embarkation and flight and thus fell squarely within the temporal scope of the Convention (at [60]). If Mr Stott “had a complete cause of action before boarding the aircraft ... it would of course follow that such a pre-existing claim would not be barred by the Montreal Convention” (at [60]). Lord Toulson JSC then stated (at [60]):

It is no answer to the application of the Convention that the operative causes began prior to embarkation. To hold otherwise would encourage deft pleading in order to circumvent the purpose of the Convention. Many if not most accidents or mishaps on an aircraft are capable of being traced back to earlier operative causes and it would distort the broad purpose of the Convention explained by Lord Hope in the Sidhu case to hold that it does not apply to an accident or occurrence in the course of international carriage by air if its cause can be traced back to an antecedent fault.

115    Qatar Airways takes from that passage that the scope of exclusivity is the course of “international carriage by air” rather than “on board the aircraft or in the course of any of the operations of embarking or disembarking”. That is not the correct reading of the passage. The first sentence, and the discussion that precedes it, makes it clear that the Court considered that exclusivity commences when the operation of embarking commences. It is put beyond doubt in the next paragraph where Lord Toulson JSC said (emphasis added): “The Convention is intended to deal comprehensively with the carrier’s liability for whatever may physically happen to passengers between embarkation and disembarkation” (at [61]). The phraseology of “international carriage by air” is used merely as a shorthand for the otherwise laboriously but precisely expressed “on board the aircraft or in the course of any of the operations of embarking or disembarking”. The same is true of the use of that phraseology in Tseng and King.

116    Some consideration was given to the exclusivity principle in Parkes. It was decided by the High Court that a claim for psychiatric injury suffered by family members arising from the death of a passenger during flight could only be brought under the Convention’s liability provisions, any action at general law being excluded. Since the claims were brought outside the two-year time limit provided for, no Convention claim was available, and all other claims were excluded. Although citing Sidhu and Stott, the plurality (Kiefel CJ, Bell, Keane and Edelman JJ) did not say anything pertinent about the temporal scope of the exclusivity principle.

117    Qatar Airways places some reliance on the concurring judgment of Gordon J. Relevantly, her Honour said this (footnotes omitted):

72.    The scope of Art 17 does not depend on the qualitative nature of the act or omission that gives rise to the claim but when and where the “event” took place. The essential element of a claim within Art 17 is an event – relevantly, the death of a passenger, in an accident on board a flight (or in the course of embarking or disembarking).

73.    If the basis of the claim satisfies the terms of Art 17, the liability of the carrier is limited to that provided by the terms of the applicable convention. On the other hand, if there is no claim within the terms of Art 17, there is no remedy. As Lord Hope of Craighead explained in Sidhu v British Airways Plc, the whole purpose of Art 17, read in context, was to prescribe the only circumstances in which a carrier would be liable to the passenger for claims arising out of that person’s international carriage by air. That principle has been applied in the United States, Hong Kong, Canada and New Zealand, amongst other jurisdictions.

118    Although her Honour (at [73]) used the phraseology of “international carriage by air” drawn from Sidhu, there is nothing in the reasoning to indicate that that was anything other than shorthand for the expression of scope in Art 17, ie if the “event” referred to in [72] is within Art 17 then the only liability of the carrier is that provided for in Art 17.

119    The result is that in my view the authorities ultimately favour the construction that the temporal scope of the exclusivity principle in Art 29 is the same as the temporal scope of Art 17, ie “on board the aircraft or in the course of any of the operations of embarking or disembarking”.

Text, context and purpose

120    That conclusion with respect to the authorities is fortified by a consideration of the Convention itself. As explained in King (at 357), the Convention’s “remedial system is designed to protect air carriers against catastrophic, crippling liability by establishing monetary caps on awards and restricting the types of claims that may be brought against carriers, while accommodating the interests of injured passengers by creating a presumption of liability against the carrier when a claim satisfies the substantive requirements of the Convention.” There can be no justification with reference to the purpose of the Convention’s remedial system to exclude entirely all claims of whatever nature that arise outside the period covered by the liability provisions, relevantly Art 17. It is in that period that carriers most obviously face a risk of accidents otherwise potentially leading to “crippling liability”. Passengers were given the benefit of airlines being subject to strict liability for claims within the scope of Art 17 in return for which airlines were given the protection of the caps on liability provided for by the Convention. There is also no justification with reference to purpose and context why airlines should also have been given the benefit of the exclusion of all liability for claims falling outside the temporal scope of Art 17.

121    The reasoning identified in Sidhu which the primary judge relied on, namely that “[t]o permit exceptions, whereby a passenger could sue outwith the Convention for losses sustained in the course of international carriage by air, would distort the whole system, even in cases for which the Convention did not create any liability on the part of the carrier” is equally applicable to the narrow approach to the exclusivity principle. That is to say, it would not “distort the whole system” if claims arising from events prior to the commencement of the operations of embarking and after the completion of the operations of disembarking were outside the exclusivity principle and therefore allowed to the extent that they are available under the local law. The point is that if one is within the temporal scope of the liability provisions of the Convention, then any liability is to be determined under the terms of the Convention. However, if one is outside that temporal scope then the Convention has nothing to say about liability.

122    Further, the concept of “during international carriage by air” is particularly imprecise. It has nothing of the specificity of the language of “on board the aircraft or in the course of any of the operations of embarking or disembarking” in Art 17 with regard to passenger claims or “on board the aircraft or during any period within which the checked baggage was in the charge of the carrier” in relation to baggage claims. Similarly in relation to cargo claims, the relevant period in Art 18(1) is “during the carriage by air” which is defined in Art 18(3) to be “the period during which the cargo is in the charge of the carrier”.

123    In contrast, nowhere does the Convention give guidance on what the scope of “international carriage by air” may be other than in Arts 1(2) and (3) which define “international carriage” with reference to countries of departure and arrival, transhipment and successive carriers but which do not deal with when in relation to any of those matters “international carriage” actually commences or terminates.

124    It is also instructive that none of the cases discuss that question in terms. For example, in Tseng (at 171-172) and King (at 360-361) it seems to have been assumed that an injury sustained by a passenger by a malfunctioning escalator in the airline’s terminal would be within the passenger’s international carriage by air although not within the temporal scope of Art 17. As much was confirmed in Stott, where Lord Toulson JSC, noted with approval (at [40]) that in Tseng the Supreme Court had:

put to rest the Court of Appeals’ fear that such a conclusion would mean that a passenger who had an accident in the terminal building through the negligence of the person responsible for its maintenance might be left without a remedy. Ginsburg J observed that the Convention’s preemptive effect on local law extended no further than the Convention’s own substantive scope, and that a carrier would be indisputably subject to liability under local law for injuries arising outside that scope, for example, for passenger injuries occurring before the operation of embarking.

125    The cases focus on giving meaning to, and applying to the facts, the expression of scope in the liability Articles, relevantly Art 17, and not some indeterminate notion of “international carriage”.

126    It is significant that Art 29, which is the only expression of the exclusivity principle in the Convention, does not say expressly, or otherwise make it clear, that its effect is to exclude entirely all claims against an airline arising from international carriage by air other than claims that fall within the substantive and temporal scope of the relevant liability provisions. To conclude that Art 29 has that effect by implication is a drastic conclusion, as illustrated by the airline’s escalator examples considered in Tseng and King, for which one would expect there to be clear wording.

127    One can take another example to illustrate the point: a passenger’s premium ticket includes the contractual right to use the airline’s premium lounge when in transit between flights. The passenger is injured in the lounge due to the negligence of the airline, for example in a slip and fall incident. When in the airline’s premium transit lounge the passenger would naturally be regarded as engaged in “international carriage”, particularly if that is taken to be assessed with reference to “the agreement between the parties” and the fact of being in transit: Art 1(2). Equally, none of the operations of embarking have commenced, and so the passenger would be unable to claim under Art 17. There is no justification with reference to the purpose of the Convention, or indeed its text, why the passenger’s claim should be excluded entirely.

128    Section 9E of the Civil Aviation Act also supports the conclusion that the scope of exclusivity is coextensive with the scope of liability. As extracted at [48] above, that section provides that the liability of a carrier under the Convention, in respect of personal injury suffered by a passenger that has not resulted in the death of the passenger, is in substitution for any civil liability of the carrier under any other law in respect of the injury. That is to say, it is only liability under the Convention that is in substitution for any other liability, implying that if there is no liability under the Convention because the claim arises outside the scope of the liability provision then there is no such substitution.

129    In the result, I would allow appeal ground 2. It is not possible to decide with the requisite degree of confidence at the summary dismissal stage that the appellants’ non-Convention claims fall within the temporal scope of Art 17 and must therefore fail. The appropriate order is to set aside order 2 made on 10 April 2024.

G. GROUND 3 – THE “SECOND LIMB” OF THE NEGLIGENCE CASE AGAINST QATAR AIRWAYS

The reasoning of the primary judge

130    The pleaded facts on the negligence claims against Qatar Airways have been extracted above at [35]-[37] and [76]-[77]. To recap on one aspect, the pleaded duty of care in FASOC [33] is:

The First Respondent owed each of the Applicants a duty of care to take all reasonable steps to avoid or minimise the risk of the Applicants suffering harm during the course of flight QR908 including in the Doha Airport terminal embarking or disembarking the aircraft, on the Doha Airport tarmac, and throughout the flight.

[Emphasis added to show where the dispute lies.]

131    The primary judge identified three “limbs” to the breach of duty claim with references to the particulars of breach of duty (PJ [181]-[184])):

(1)    the flight crew of Qatar Airways participated in and facilitated the police operation conducted by the MOI by directing the appellants to disembark the aircraft and were at least reckless as to the reason for making that direction;

(2)    Qatar Airways failed to take steps or adequate steps to prevent the first to fourth appellants from being directed onto the tarmac and into the ambulance and the invasive examinations of the first to fourth appellants taking place in the ambulance, and to prevent the fifth appellant from being directed onto the tarmac; and

(3)    “in circumstances where its corporate subsidiary”, MATAR, is the “contracted manager and operator of the Doha Airport”, Qatar Airways breached its duty of care to the applicants.

132    As mentioned, his Honour was satisfied to allow the first limb to go to trial, but he would have struck out the second and third limbs, both of which concern matters on the tarmac rather than in the aircraft. Also, there is no challenge to the third limb being struck out; the appeal is limited to the second limb. The result is that it is common ground that the words “in circumstances where its corporate subsidiary, the Third Respondent, was the contracted manager and operator of the Doha Airport” in FASOC [34] will remain struck out.

133    His Honour was satisfied that the existence of the duty of care was pleaded sufficiently, save to the extent that it is alleged that the duty of care extended to the airport tarmac independently of any embarking or disembarking of the aircraft (PJ [186]). His Honour reasoned that the risk of harm to passengers on a tarmac, except as related to embarking or disembarking, is too far removed from the risks of harm the subject of previous cases addressing the liability of airlines in negligence; the basis on which such a duty of care to avoid or minimise harm arises must necessarily be pleaded by way of material facts which has not been done (PJ [187]).

134    Specifically with regard to the second limb, his Honour observed that none of the steps that are alleged that Qatar Airways should have taken are identified in the pleading; in the absence of any articulation of those steps, how the alleged breaches could have prevented the invasive examinations and consequent injury to the appellants is not apparent (PJ [188]). The particulars of breach (in FASOC [34]) which his Honour identified as forming the “second limb” and which his Honour would have struck out, along with the words “on the Doha Airport tarmac” in FASOC [33], are that Qatar Airways breached its duty of care to each of the appellants (PJ [182]):

(viii)     By failing to take any or adequate steps to prevent the First to Fourth Applicants from being directed onto the tarmac and into the ambulance;

(ix)     By failing to take any or adequate steps to prevent the First to Fourth Applicants from being subjected to an intimate examination or inspection; and/or

(x)     By failing to take any or adequate steps to prevent the Fifth Applicant from being directed onto the tarmac and towards the ambulance.

135    In summary terms, the relevant pleading is in effect that Qatar Airways failed to take any or adequate steps to protect the appellants from what happened to them once they were directed from the aircraft.

136    The primary judge did not consider whether there should be leave to replead on the basis that to do so would be futile given that the negligence claims against Qatar Airways were to be summarily dismissed in any event (PJ [270]).

The parties’ contentions

137    The appellants submit that the asserted duty of care was pleaded at an appropriately high level of abstraction and that the pleading is sufficiently particularised to provide fair notice to Qatar Airways of the case to be made against it at trial. They submit that that is even more so because the appellants are seeking redress in relation to events over which they had no agency, in a foreign country, at night, against powerful respondents who control access to documentary evidence and to individuals involved in the incident. The appellants submit that, in any event, the primary judge erred by apparently concluding that it would have been appropriate to strike out the “second limb” without addressing whether reasonable amendments could have cured the alleged defects.

138    Qatar Airways advances three reasons why the primary judge was correct. First, it submits that the law does not generally impose any duty on a person to take steps to prevent harm, even very serious harm, befalling another, except where some special relationship exists, citing Pyrenees Shire Council v Day [1988] HCA 3; 192 CLR 330 at [101]-[102] per McHugh J, which is absent in the present case. Secondly, it submits that the alleged duty of care would impose a novel obligation on civilians to interfere with the operations of a law enforcement agency, presumably on the basis that those operations were misguided and caused harm to the appellants, including in a foreign jurisdiction without regard to the content of domestic law. Thirdly, it submits that a duty of care will not arise “if that duty would not be compatible with other duties which the respondents owed”, citing Sullivan v Moody [2001] HCA 59; 207 CLR 562 at [55], [60]-[62]. Qatar Airways submits that the evidence before the primary judge establishes that it is a criminal offence in Qatar punishable with imprisonment and a fine for a person to interfere with a public officer in the exercise of their duties.

139    With respect to the appellants’ submission that the primary judge did not consider whether he should have granted them leave to replead, Qatar Airways submits that that was a discretionary decision by the primary judge in respect of which the appellants identify no error. Moreover, the appellants have not identified what amendments they would seek to make that would cure any deficiency.

140    In reply, the appellants submit that they do have prospects of establishing that a “special relationship” existed while they were on the tarmac in the vicinity of the aircraft, citing Karpik v Carnival plc (The Ruby Princess) (Initial Trial) [2023] FCA 1280 at [539]-[546]. They point to the fact that at the start of the incident the appellants were on board the aircraft where the Qatar Airways pilot-in-command was responsible for their safety, and that it was a member of the aircrew who announced that they were required to exit the aircraft. With respect to Qatar Airways’ reference to Qatari law, the appellants submit that the criminal offence applies only to persons who use “force”, “violence” or “menace” against the public officer, and that the public officer must be exercising their duties rather than engaging in unlawful conduct.

141    On the question of not having been granted leave to replead, the appellants submit that the primary judge acted upon a wrong principle in failing to address whether reasonable amendments could cure the alleged defects, or he made a decision that was unreasonable or unjust.

Consideration

142    Essentially for the reasons given by the primary judge and advanced by Qatar Airways, I have concluded that the primary judge is correct in having found that insufficient facts are pleaded such as to justify the pleaded duty of care of the airline in relation to events on the tarmac. In brief, nothing is pleaded as to why the airline would have a special relationship with passengers when they were on the tarmac outside the ordinary procedures of embarking and disembarking such as to require it to have acted positively in relation to those events.

143    As mentioned, his Honour did not consider whether the appellants should be afforded the opportunity to plead facts that establish the special relationship and hence the extension of the duty of care to the tarmac because he had already concluded that the claims against the airline should be summarily dismissed; the strikeout application was considered only in the alternative. Since I have concluded that the summary dismissal orders must be set aside, the Court on appeal must now itself consider whether the appellants should be afforded the opportunity to replead.

144    One of the reasons given by his Honour for striking out the second limb of the negligence case was that the appellants failed to articulate “any basis on which the duty of care would extend to the risk of harm independently of embarking or disembarking the aircraft” (PJ [188]). Also, the strike out application was considered on the premise that what happened to the appellants on the tarmac and in the ambulance was not during any of the operations of embarking or disembarking within the meaning of Art 17. However, as explained in relation to ground 1, it is not necessarily the case that what occurred on the tarmac was not part of those operations. In addition to what I have said in relation in ground 1, there are allegations of the involvement of the flight crew in the events beyond the aircraft itself:

(1)    The appellants were directed by members of the Qatar Airways flight crew and by armed and unarmed persons in dark uniforms to a departure lounge within the Doha Airport terminal (FASOC [14]);

(2)    The fifth appellant was separately directed by members of the Qatar Airways flight crew into a lift and down to a lobby near the tarmac (FASOC [16]); and

(3)    The fifth appellant was directed by a member of the Qatar Airways flight crew towards the tarmac and then back towards the aircraft after someone else said words to the effect of “no, not her” (2FASOC [21]).

145    It is to be noted that the last of those matters is sought to be pleaded in the proposed 2FASOC rather than being in the existing pleading.

146    In addition to those matters, experience tells one that airline personnel other than flight crew are regularly involved in directing passengers between the boarding gate and the aircraft in both directions. Thus, it may turn out that airline personnel, whether or not flight crew, were involved in directing the passengers when they had left the aircraft, which in turn may establish that the airline had some level of control or influence in relation to the events that occurred thereafter. It is not possible to say with any certainty that that will not be the case.

147    As the summary of their submissions above shows, the parties to some degree rely on the evidence adduced on the application for summary dismissal of the claims against Qatar Airways and MATAR’s application for service on it to be set aside in relation to Qatar Airways’ strikeout application. That is also reflected in the primary judge’s reasons in relation to the strikeout application where his Honour observed that “[t]he fundamental issue that any pleadings of negligence against Qatar Airways and MATAR must confront is that the applicants’ removal from the aircraft and the subsequent examinations were part of a law enforcement operation conducted by the MOI” (PJ [178]). The matter of there being a “law enforcement operation conducted by the MOI” is attested to in the affidavit of a MATAR employee, Giorgio Buffa, in support of MATAR’s application.

148    However, a strikeout application is required to be considered on the assumption that the facts that are pleaded can be proved: Federal Treasury Enterprise (FKP) Sojuzplodoimport v Spirits International BV [2024] FCAFC 152 at [18] per Jackman J, Markovic and Rofe JJ agreeing. The only place for evidence in the strikeout application is in relation to the question of leave to replead. Obviously, the appellants will be constrained by what they consider that they might reasonably be able to prove in any repleading of their claims in negligence, which will have to take account of the evidence that they now know Qatar Airways would likely to able to rely on. But that evidence does not, at this stage, persuade me that there is nothing more than a fanciful prospect of the appellants being able to plead facts that disclose a cause of action.

149    For those reasons, I would allow appeal ground 3.

H. SUMMARY OF RESULT IN RELATION TO QATAR AIRWAYS

150    To summarise the position in relation to Qatar Airways, the primary judge’s order 2 should be set aside, as should order 3 insofar as it concerns the appellants’ case against Qatar Airways. The primary judge’s orders should be replaced with orders:

(1)    Dismissing the relief sought in prayers 1 and 1A of the first respondent’s interlocutory application dated 24 May 2023 (ie the summary dismissal prayers for relief);

(2)    Striking out:

(a)    the words “on the Doha airport tarmac” in FASOC [33];

(b)    the words “in circumstances where its corporate subsidiary, the Third Respondent, was the contracted manager and operator of the Doha Airport” in FASOC [34]; and

(c)    particulars (viii) to (x) in FASOC [34]; and

(3)    Granting the appellants liberty to apply to further amend their statement of claim.

151    There is no need for any amendments to the claims against Qatar Airways before Qatar Airways puts on a defence and processes for evidence are embarked on. Nevertheless, it may be that the appellants wish to, and are able to properly plead amendments to their claims at this stage, or it may be that they can only do so at some later stage. Those are matters for case management by the docket judge. Order (3) immediately above is intended to reflect that.

I. GROUNDS 4 AND 5 – THE CLAIMS AGAINST MATAR

Introduction

152    As explained above, all the appellants plead claims against MATAR in negligence at common law and for the intentional torts of assault and false imprisonment. The first, third and fourth appellants also plead claims for the intentional tort of battery.

153    The effect of the primary judge’s orders in relation to MATAR are that the appellants were granted leave to file a revised 2FASOC limited to claims against MATAR that can be advanced independently of:

(1)    any alleged vicarious liability for persons, other than employees of MATAR or persons contracted by MATAR to provide security services at the airport; and

(2)    any allegation that MATAR owed a duty of care to the appellants to take steps to prevent the “nurse” conducting the invasive examinations of the first to fourth appellants in the ambulance as part of the police investigation undertaken by the MOI.

(PJ [274].)

154    That is to say, the claims that depend on allegations identified in (1) and (2) above were struck out and no leave was granted to replead them. There are challenges to both those limitations imposed by the primary judge. Ground 4 challenges the limitation in (1), but only insofar as it concerns the woman thought to be a nurse. That is to say, the appellants submit that they should still be permitted to plead that the “nurse” was employed by MATAR or that she was a “true agent” of MATAR. Ground 5 challenges the limitation in (2). The appellants submit that they should be allowed to plead that MATAR owed them a duty of care in relation to what happened to them in the ambulance – the assaults, battery and false imprisonment.

155    As already explained, the primary judge ultimately dealt with the application before him as if it was a strikeout application but also took into account the evidence that was adduced before him and did not restrict himself to the pleaded allegations. As explained above (at [148]), a strikeout application is required to be considered on the assumption that the facts that are pleaded can be proved. The strikeout rule does not permit or allow consideration of facts or evidence outside the pleadings: Imobilari Pty Ltd v Opes Prime Stockbroking Ltd [2008] FCA 1920; 252 ALR 41 at [4] per Finkelstein J. As was explained in Young Investments Group Pty Ltd v Mann [2012] FCAFC 107; 293 ALR 537 at [6] per Emmett, Bennett and McKerracher JJ:

In an application to strike out a pleading, all of the facts alleged in the relevant pleading are to be accepted as true, and it is to be taken for granted that, on all other points, the pleading is unassailable. Provided that a pleading fulfils its basic function of identifying the issues, disclosing an arguable cause of action and apprising the other party of the case that it has to meet at trial, the pleading should be allowed to stand and the proceeding should be allowed to go to trial.

156    The appellants do not specifically identify error with his Honour’s approach in effectively striking out portions of their claims in the absence of any strikeout application and with reference to the evidence. Rather, by their grounds of appeal they say that his Honour’s refusal to give them leave to replead two aspects of their pleading was in error (that is to say, his Honour’s conclusion, rather than the approach taken). In light of the way in which the appeal is put, and the absence of any cross appeal by MATAR challenging the approach that the judge took, I consider that the Court on appeal is confined to the same course, ie to consider the evidence in relation to whether leave to replead should have been granted.

The pleaded facts

157    In addition to the matters extracted at [35]-[37] above, the proposed 2FASOC pleads the following allegations against MATAR.

158    The appellants plead that as the contracted manager and operator of the airport, MATAR is vicariously liable for the acts and omissions of its employees and of persons akin or analogous to employees, and is liable as principal for the acts and omissions of its agents acting within the scope of their actual or ostensible authority, and is liable for the acts and omissions of persons otherwise under its control or direction (2FASOC [32A]).

159    In relation to the claim for negligence against MATAR, the appellants plead that as contracted manager and operator of the airport, MATAR owed each of the appellants, as passengers on a flight departing from the airport, a duty of care to take all reasonable steps to avoid or minimise the risk of the appellants suffering harm while on the airport premises (2FASOC [43C]).

160    The appellants plead that by reason of the conduct pleaded as extracted at [33] above, including by the conduct of its employees and agents, MATAR breached its duty of care to each of the appellants and that by reason of the breach each of the appellants has suffered and continues to suffer loss and damage (2FASOC [43D]-[43E]). The following particulars of breach are pleaded:

(i)     By requesting or requiring that all female passengers exit the aircraft, or by failing to take any or adequate steps to ascertain, or by being reckless as to, the reason for any request or requirement that female passengers exit the aircraft;

(ii)     By failing to provide the Applicants with any or any adequate explanation as to why they had to exit the aircraft;

(iii)     By directing the Applicants from the aircraft to a departure lounge within the Doha Airport terminal, or by failing to take any or adequate steps to prevent the same;

(iv)     In the alternative, by being reckless as to the reason for the requirement that the Applicants enter the departure lounge within the Doha Airport terminal, or by recklessly failing to take any steps to prevent the same;

(v)     By directing the Applicants into a lift and down to a lobby near the tarmac, or by failing to take any or adequate steps to prevent the same;

(vi)     By directing each of the First to Fourth Applicants onto the tarmac and into the ambulance;

(vii)     By directing each of the First to Fourth Applicants to undergo an intimate, invasive examination or inspection;

(viii)     In the alternative, by failing to take any or adequate steps to prevent the First to Fourth Applicants undergoing an intimate, invasive examination or inspection; and/or

(ix)     By directing the Fifth Applicant onto the tarmac and towards the ambulance, or by failing to take any or adequate steps to prevent the same …

161    In respect of the claims for assault against MATAR, the appellants plead that the conduct of the nurse, “who was acting as an agent or employee or a person akin or analogous to an employee of [MATAR] or was otherwise under its control or direction”, directly caused each of the first to fourth appellants to apprehend imminent physical contact with her person, and that the nurse intended to create such an apprehension or was reckless or negligent as to that result (2FASOC [43G]). The appellants also make the same pleading in respect of the fifth appellant, save that the apprehension of imminent contact is pleaded to have been by “the conduct of the uniformed persons, who were acting as agents or employees or persons akin or analogous to employees of [MATAR] or were otherwise under its control or direction” (2FASOC [43H]).

162    The claims for battery against MATAR are only in respect of the first, third and fourth appellants who aver that they did not consent to the nurse coming into direct physical contact with them (2FASOC [43K]). As with the claims for assault, they depend on the nurse being an agent, employee, etc of MATAR (2FASOC [43J]).

163    In respect of the claims for false imprisonment against MATAR, the appellants plead that “the persons in dark uniforms” and the nurse were agents or employees etc of MATAR and that they “directly subjected each of the Applicants to a total restraint on her liberty that amounted to false imprisonment” (2FASOC [43M]). The following particulars are given:

(i)     Each of the Applicants was confined by the armed and unarmed persons in dark uniforms, as she was directed from the aircraft to the departure lounge within the Doha Airport terminal;

(ii)     Each of the Applicants was confined by the armed and unarmed persons in dark uniforms within the departure lounge;

(iii)     Each of the First, Second, Third and Fifth Applicants was confined by the armed and unarmed persons in dark uniforms, as she was directed from the departure lounge into a lift and down to a lobby near the tarmac;

(iiiA)     The Fourth Applicant was confined by the armed persons in dark uniforms, and by an unidentified employee or agent of the Third Respondent from the departure lounge into a lift and down to a lobby near the tarmac;

(iv)     Each of the First, Second, Third and Fifth Applicants was confined by the armed and unarmed persons in dark uniforms, as she was directed from the lobby onto the tarmac and towards the ambulance; and

(ivA)     The Fourth Applicant was confined by the armed persons in dark uniforms and by an unidentified employee or agent of the Third Respondent, as she was directed from the lobby onto the tarmac and towards the ambulance; and

(v)     Each of the First to Fourth Applicants was confined in the ambulance by the female who appeared to be a nurse and/or by the armed and unarmed persons in dark uniforms.

The primary judge’s reasons

164    The primary judge accepted that MATAR as the contracted manager and operator of the airport owed to each of the appellants, as passengers on a flight departing from the airport, a duty of care to take all reasonable steps to avoid or minimise the risk of them suffering harm on the premises of the airport, including the tarmac (PJ [234]). However, his Honour concluded that the duty of care owed by MATAR did not extend to taking steps to prevent the examinations or inspections of the first to fourth appellants by the “nurse” in the ambulance and preventing the fifth appellant from being directed towards the ambulance (PJ [236]). His Honour’s reasoning to that conclusion included the following:

(1)    The alleged duty of care seeks to impose on a civilian operator of an airport a novel duty to take steps to prevent a government instrumentality undertaking a police operation or at least prevent a significant step in that operation from taking place (PJ [237]).

(2)    No material facts are pleaded in the proposed 2FASOC that would support a finding that the duty of care extended to those matters (PJ [238]).

(3)    The steps that it is alleged that MATAR should have taken but failed to take to prevent examinations are not pleaded or particularised in the proposed 2FASOC (PJ [239]-[240]).

165    Next, his Honour considered the possible liability of MATAR for the MOI police officers and the “nurse”. His Honour observed that as currently pleaded in both the FASOC and the proposed 2FASOC, the negligence and intentional tort claims are largely, but not exclusively, dependent on allegations that MATAR is vicariously liable for the conduct of the MOI police officers and the nurse in the ambulance or proceed on the basis that MATAR was in a position to take steps to prevent the examinations from taking place (PJ [241]).

166    After identifying the allegations in the pleadings concerning the involvement of employees or agents of MATAR in the events in question (PJ [243]) and the particulars provided in the proposed 2FASOC (PJ [244]), his Honour observed that none of the particulars of the alleged breach of duty expressly refer to any conduct of an employee of MATAR or security personnel contracted by MATAR (PJ [245]). Similarly in relation to the intentional tort claims, the appellants plead that “persons in dark uniforms” and the “nurse” were acting as “agents or employees or persons akin or analogous to employees” of MATAR (PJ [246])

167    His Honour then concluded that the negligence and intentional tort claims against MATAR have no reasonable prospects of success insofar as they seek to attribute liability to MATAR for the conduct of the MOI police officers and the “nurse” (PJ [248]). His Honour’s reasons to that conclusion include the following:

(1)    Insofar as the negligence and intentional tort claims are based on the vicarious liability of MATAR for the conduct of persons who are not employees of MATAR, no material facts are pleaded or particulars are provided from which any coherent claim is advanced beyond a mere assertion that the “persons in dark uniforms” and the “nurse” were agents of MATAR, akin to MATAR’s employees or agents, or acting under MATAR’s direction or control (PJ [249]).

(2)    The search for the mother of the abandoned baby was quintessentially a police matter; it had no apparent connection to the screening of passengers in a terminal in the course of embarking or disembarking; the invasive examinations were conducted as part of the police operation undertaken by the MOI and it is inherently unlikely that any person who participated in that operation, other than a person contracted by MATAR or an employee of MATAR, was relevantly an agent of MATAR or acting under MATAR”s direction or control. His Honour reasoned that that applies with particular force to the “nurse” in the ambulance. (PJ [250].)

(3)    MATAR has adduced unanswered or unanswerable evidence that the persons directing the MOI operation were police officers of the MOI and the “nurse” was not employed by or under the direction or control of MATAR (PJ [251]). His Honour identified a number of factual propositions in that category including, most relevantly, that MATAR does not employ or contract any nurses or paramedics at the airport.

(4)    The appellants’ response to a request for further particulars of the facts, matters or things relied upon to allege that the “armed and unarmed persons in dark uniforms” were employees, agents or were “akin or analogous to” employees of MATAR that those matters are uniquely in MATAR’s knowledge merely obscures rather than illuminates the case (PJ [254]-[255]).

(5)    In relation to the intentional tort claims, no allegation is made in the proposed 2FASOC that MATAR was aware that examinations were taking place in the ambulance before they were conducted, nor is it alleged that the police operation was a joint security operation between MATAR and the MOI, or that MATAR authorised or otherwise consented to the actions of the MOI police officers or the ambulance entering the tarmac and the “nurse” conducting the examinations (PJ [256]).

168    His Honour recognised that there are claims in the proposed 2FASOC that are plausibly advanced by the appellants, including:

(1)    a negligence case pleaded in effect as a participation and facilitation of tortious conduct case; and

(2)    vicarious liability for assault and false imprisonment for conduct of employees of MATAR in giving directions to the appellants in connection with the steps leading up to and following the invasive examinations in the ambulance.

(PJ [260]-[261].)

169    His Honour was not satisfied that at least to the extent that the claims that refer to the employees of MATAR or can be repleaded to refer specifically to the conduct of contracted security personnel of MATAR can be described as “fanciful, implausible, improbable, tenuous or contradicted by all available documents or other materials” (PJ [261]). Thus, his Honour concluded that “at least (a) the extent of the involvement of MATAR’s employees or contracted security personnel in the incident, (b) the specific content and context of any specific directions given by them to the applicants, and (c) the extent to which MATAR employees or contracted security personnel were subject to the control of MOI police officers or otherwise under any obligation to act in accordance with their directions, are factual disputes that make a trial necessary” (PJ [262]).

170    His Honour identified a number of factual matters pleaded by the appellants which would need to be determined at trial and which are not readily capable of determination on a summary basis (PJ [264]-[265]). Those matters include:

(1)    The identity of and specific directions given to the “unarmed persons in dark uniforms” and various unidentified employees or agents of MATAR referred to in the 2FASOC;

(2)    the degree and nature of any control that MATAR might have had over the movement of the appellants through the terminal and onto the tarmac;

(3)    the specific content of any instructions given by the MOI police officers to any employees or contracted security personnel of MATAR;

(4)    the extent to which MATAR employees and contracted security personnel may have assisted the MOI police officers; and

(5)    any knowledge MATAR employees or contracted security personnel might have had as to the invasive examinations being conducted in the ambulance by the “nurse”.

171    His Honour observed that answers to those questions are necessary to determine (PJ [266]):

(1)    the specific content of any legal duty owed by MATAR as an airport operator to take reasonable care to avoid harm or injury to the appellants as passengers for reward passing through the terminal;

(2)    whether MATAR did something that increased the risk of injury or harm to the appellants in connection with the MOI police operation;

(3)    whether MATAR failed to do something that might have produced that risk; and

(4)    whether in all the circumstances MATAR has breached any duty to take reasonable care to avoid harm or injury to the appellants.

172    His Honour then went on to address the application for leave to amend. Relevantly, his Honour reasoned that the battery claims are exclusively dependent on the premise that the “nurse” was an employee of MATAR, an agent of MATAR, a person akin or analogous to an employee of MATAR or a person otherwise under its control or direction. Given his Honour’s earlier conclusion with respect to any attribution of liability to MATAR of the conduct of the nurse, his Honour concluded that that claim has no reasonable prospects of success. (PJ [272].)

173    Further, his Honour concluded that the negligence “or” intentional tort claims are not pleaded in a manner that allows for the exclusion of the impermissible claims with respect to MOI police officers and the nurse, and thus as currently pleaded and proposed to be pleaded, “the negligence claims have insufficient prospects of success to warrant MATAR from being put to the time, expense and trouble of defending them” (PJ [273]).

174    It was on that basis that his Honour granted the appellants leave to replead in the manner set out at [20] and [150] above (PJ [274]).

MATAR’s application to set aside service

175    As mentioned, MATAR’s application to set aside service, with reference to FCR r 10.43A(2)(c), was based on the proposition that the claims against it have insufficient prospects of success to warrant putting it to the time, expense and trouble of defending them. The primary judge’s reasoning summarised at [168]-[170] above that there are plausible claims pleaded against MATAR that warrant going to trial has the result that MATAR’s application for service to be set aside should have been dismissed. There is no basis upon which such an application could succeed in part; once there is a basis for some claims to proceed to trial the fact that some other claims may not warrant that course can have no bearing on whether service is set aside under r 10.43A(2)(c).

176    The primary judge’s order 8 should accordingly be set aside and there should be an order dismissing MATAR’s interlocutory application dated 30 June 2023.

Ground 4: MATAR’s vicarious liability for the “nurse”

The parties’ contentions

177    The appellants submit that the primary judge erred in finding that it is an unanswerable factual proposition that the “nurse” was not relevantly an agent of MATAR or under its direction or control. They also submit that the primary judge erred in not granting leave to them to file an amended pleading in respect of MATAR’s liability for the conduct of the nurse in the ambulance. The appellants point to various matters in the evidence which, they submit, demonstrate that it is plausible that it may be shown in due course that the nurse was an agent of MATAR or under its direction or control.

178    The respondents observe that the appellants now restrict their negligence and intentional tort claims to the conduct of the nurse, not pressing the pleading that MATAR could be held responsible for the conduct of the “persons in dark uniforms”. They also observe that the assertion that the nurse was “akin or analogous to an employee” is not pressed, presumably because it is untenable following the High Court’s decision (delivered after the primary judgment) in Bird v DP [2024] HCA 41; 419 ALR 552 at [63]-[65]. That was not challenged by the appellants in reply, and would appear to be correct.

179    The respondents advanced five reasons why appeal ground 4 should fail. It is not necessary to identify each of those reasons at this stage.

180    In reply, the appellants press their claims in respect of the conduct of the “persons in dark uniforms”, submitting that the primary judge found only that the “armed persons in dark uniforms” were police officers from the MOI (PJ [253(d)] and [263]) and that the description of “persons in dark uniforms” is met by the evidence that MATAR’s security personnel wore “navy” suits, ties and identification lanyards. The appellants submit that the acts of the nurse are attributable to MATAR on the basis that the nurse was the “true agent” of MATAR or that the nurse was acting under its direction or control, citing CCIG Investments Pty Ltd v Schokman [2023] HCA 21; 278 CLR 165 at [55]-[56] per Edelman and Steward JJ and Bird v DP at [31], [34]-[35].

Consideration

181    For MATAR to be liable as principal for the conduct of the “nurse”, she must have been employed by MATAR or there must have been a relationship of “true agency”: Bird v DP at [5] and [35] per Gageler CJ, Gordon, Edelman, Steward and Beech-Jones JJ; see also at [214] and [226] per Jagot J. The appellants have pleaded that the nurse was employed by MATAR. Assuming that allegation to be true, as required in the context of a strikeout application (see above at [144] and [150]), that is sufficient to establish MATAR’s potential liability for the conduct of the nurse. Thus, the primary judge was in error in striking out the pleadings to the extent that they rely on that allegation. The appellants, however, do not make that criticism and seem to accept, erroneously, that the primary judge could use the summary dismissal power in relation to a single isolated allegation within a larger claim without summarily dismissing that claim. The result is that even in relation to the nurse’s alleged employment by MATAR, the appeal is directed to the question of leave to replead.

182    In so far as the appellants rely on “true agency” in the alternative, they have pleaded that the nurse is the “agent” of MATAR. They also seek leave to plead that she was “otherwise under its control and direction” (proposed 2FASOC at [43G], [43J]). They have not pleaded any facts which would justify the conclusionary pleading that the relationship between the nurse and MATAR was one of “true agency”, and neither have they adduced any evidence to show that there is some basis to plead that the nurse was under the control and direction of MATAR. Those failures would constitute proper bases to strike out the agency averment and refuse leave to plead the control or direction averment.

183    The question then becomes whether the primary judge erred in the exercise of the discretion not to allow the appellants to replead proper bases to those averments grounding MATAR’s vicarious liability for the conduct of the nurse. That requires the establishment of error of the type described in House v The King. The relevant error is in the primary judge’s conclusion that “MATAR has adduced unanswered or unanswerable evidence that ... the nurse was not employed by or under the direction or control of MATAR” (PJ [251]). Whilst it is true that MATAR’s evidence on the point was in a sense “unanswered” by the appellants, it is not the case that it is “unanswerable”. It is not right or possible to conclude at this early stage of the proceeding that it will not be possible to plead in due course that the nurse was the employee or true agent of MATAR. There are a number of considerations that lead me to that conclusion.

184    First, the proceeding is at a very early stage. MATAR has not yet put on a defence; indeed, it has applied to set aside service on it in order to avoid putting on a defence. Moreover, as the appellants submit, they are in a highly disadvantaged position in relation to being able to gather and adduce evidence at this stage on the precise relationship between MATAR and the nurse. The appellants were fleeting visitors to the airport managed by MATAR. They were there, in a foreign country, in the dead of night; they were highly vulnerable to being ordered about; they were essentially powerless, and they had no opportunity to get answers about who was responsible for what. They have also had very limited such opportunity since then. There has been no discovery, MATAR has not put on evidence and no opportunity has yet arisen for interrogatories. Indeed, save for a limited extent in relation to the application to set aside service, none of the compulsory processes for uncovering the truth that are available to a litigant in the preparation of a case for trial have yet been available to the appellants.

185    Secondly, the evidence that was adduced by MATAR does not deal with the specific events of the night in question; it does not canvass whether the “nurse” was in fact a nurse and who employed her, under whose directions she operated and how she came to be in an ambulance on the tarmac very close to or even “under” the aircraft, or how the ambulance came to be on the tarmac and who authorised it to be there. MATAR’s evidence is mostly directed to general systems and practice, including the statement by one of its deponents that it does not employ or contract nurses. Even that statement is directed to the time it was made, 19 July 2023, and not the time of the incident nearly 3 years earlier. Its Senior Manager of Operations, Mr Buffa, gave evidence of his own involvement in the events on the night in question, but neither he nor any other witness purports to deal more broadly with the actual involvement of other MATAR personnel.

186    On any view, the events of the night in question were extraordinary (as recognised at PJ [250]) which means that things may have been done that night that were not in accordance with the usual systems and practices. It is not fanciful to contemplate that an officer from MATAR, in their efforts to assist the MOI police, instructed that a nurse from a medical centre at the airport intimately examine female passengers who were removed from aircraft. The evidence that the medical centres were operated by a separate government owned company, Hamad Medical Corporation, does not gainsay that possibility – there is no evidence about MATAR’s ability to give instruction to that company or, more particularly, the ability of an officer of MATAR to instruct staff from the medical centre. Nor is there evidence to say that MATAR did not give instructions for the ambulance, or ambulances, to be made available on the tarmac for the purpose of invasive medical examinations to be made.

187    Thirdly, there was no evidence to support the primary judge’s summary conclusion (at PJ [253(b)]) that “the invasive examinations of the first to fourth applicants were conducted by the nurse at the direction of the MOI”. On the evidence before the primary judge on Qatar Airways’ summary judgment application and MATAR’s application to set aside service, there was a basis to conclude that it is more probable than not that the nurse acted under the direction of the MOI. However, that is not the applicable standard in relation to whether the appellants should have leave to replead a proper basis to their allegations that MATAR is vicariously liable for the actions of the nurse. The authorities repeatedly emphasise that the power to strike out a claim and refuse leave to replead must be exercised with great caution and only in a very clear case.

188    In the result, I would allow appeal ground 4.

Ground 5: MATAR’s duty of care in respect of the ambulance

The parties’ contentions

189    The appellants submit that the primary judge erred in concluding that MATAR’s duty of care did not extend to taking steps to prevent the appellants being directed to, or being examined by the nurse in, the ambulance on the airport tarmac. They submit that the scope of the airport operator’s duty was unsuitable for summary determination as it raises a question of law that is arguable yet “novel”, or it is a combination or mixture of questions of fact and law. They also submit that the primary judge erred in not granting leave to replead on that point.

190    MATAR submits that this ground raises the same issues as appeal ground 3 in relation to Qatar Airways. It submits that the posited duty of care was not simply “novel” or “abstract”; it was incoherent. They submit that the appellants have no prospect of establishing that MATAR, as operator of the airport, owed a duty of care to the appellants that required it to take steps to prevent the MOI from carrying out its police operation.

191    In reply, the appellants contest that the posited scope of the duty of care is “incoherent” and point to the primary judge’s acceptance that the duty of care of the airport manager extends to passengers while on the tarmac (PJ [234]). The appellants submit that the respondents mischaracterised this aspect of the claim as being to take steps “to prevent the MOI from carrying out its police operation” when the pleaded failure to take adequate steps relates to unarmed persons directing the appellants and that the unarmed security personnel identified by the appellants could be security personnel employed by MATAR.

Consideration

192    As the appellants point out, the primary judge in substance accepted the appellants’ pleaded duty of care against MATAR, ie that MATAR as operator of the airport owed each of the appellants, as passengers on a flight departing from the airport, a duty of care to take all reasonable steps to avoid or minimise the risk of them suffering harm “on the premises of the airport, including the tarmac” (PJ [234]). In light of that conclusion, which is not challenged in the appeal, his Honour’s exclusion from any pleading against MATAR “any allegation that MATAR owed a duty of care to the applicants to take steps to prevent the nurse conducting the invasive examinations of the first to fourth applicants in the ambulance as part of the police investigation undertaken by the MOI” (at PJ [274]) is to be understood as excluding any pleaded allegation that such a failure was a breach of MATAR’s accepted duty of care.

193    The relevant allegations of breach pleaded by the appellants are the following (summary of particulars (vi)-(ix) extracted at [160] above):

(1)    Directing each of the appellants onto the tarmac and towards the ambulance; and

(2)    Directing each of the first to fourth appellants into the ambulance to undergo an intimate, invasive examination or inspection, or failing to take any or adequate steps to prevent them undergoing an intimate, invasive examination or inspection.

194    As with appeal ground 3, it is an error to conclude that the duty of care cannot possibly extend to the circumstances in and around the ambulance. There are two principal considerations that lead me to that conclusion.

195    First, there is nothing deficient in the pleading of the relevant allegations that fails to disclose a cause of action. Accepting that the “unarmed persons in dark uniforms” identified by the appellants could have been MATAR’s security personnel in their customary dark suits and ties and identifying lanyards, there are pleaded allegations that MATAR’s personnel were involved in the process of directing the appellants to the ambulance. They include directing the appellants to a departure lounge, into a lift and down to a lobby near the tarmac; the fourth appellant being separately directed by “an unidentified female employee or agent of [MATAR] into a lift”; and, various of the appellants being directed onto the tarmac and into the ambulance by unarmed persons in dark uniforms (see [35] above). On the assumption that the pleading can be proved, that pleaded level of involvement by MATAR is sufficient to make it impossible to conclude with the requisite degree of certainty that MATAR’s duty of care could not extend to the relevant breaches pleaded by the appellants.

196    Secondly, even taking the evidence into consideration, it cannot be concluded with sufficient confidence that the relevant allegations of breach will fail. There is evidence that MATAR was responsible for the security of the tarmac area, including the access of vehicles such as the ambulance to the tarmac. MATAR’s aviation security officers utilise the Airport Security Operations Centre, to which MOI officers were also deployed, to coordinate access control measures to restricted areas of the airport. MATAR liaises with the MOI in relation to policing operations, and MATAR officers follow directions given by the MOI during the course of any such operation.

197    Further, one of the appellants told the AFP that there were two men, one with a clipboard and paper, checking the women passengers’ names off against a list when they were returning to the aircraft. Those men could have been MATAR security personnel. One of the appellants also told the AFP that a “woman from the airport” directed her and others to the lift to go to the tarmac and then the ambulance and “someone from the airport” who was not “an armoured guard” (sic) directed her into the ambulance. Those matters suggest that it may be established in due course that MATAR had far greater involvement in the relevant events than it presently accepts.

198    There is also a report of a statement made by Qatar’s Public Prosecutor on 23 November 2020 on the outcome of an investigation of the events in question. The statement says that “some employees” of “airport security” summoned female medical staff at the airport to conduct external examinations of female passengers prior to allowing them to depart for their destinations. The statement also says that “some employees of the Airport Security Department acted unilaterally by summoning female medical staff ... thinking that what they had done was within the law as they are Judicial Police Officers”. Although it is likely that the “employees” referred to are MOI police officers, that is by no means certain. It is odd to describe police officers as “employees”, and it is not clear that the “Airport Security Department” is a reference to the MOI at the airport as opposed to MATAR’s security department; the description “airport security” is as apt to describe MATAR’s security department as it is the MOI’s.

199    The point is that it is not possible to conclude at this early stage of the proceeding on the evidence currently available that the appellants’ pleading in relation to MATAR breaching its duty of care to them in respect of the events on the tarmac and in the ambulance is fanciful and bound to fail. The appellants have not had the processes of compulsory discovery and the like available to them and they have therefore not been able to meaningfully challenge the limited evidence given by MATAR on its interlocutory application. Similar observations about the stage of the proceeding and the absence of any meaningful opportunity to challenge the respondent’s evidence in support of the summary dismissal of a suit were made by a unanimous High Court in Trkulja v Google LLC [2018] HCA 25; 263 CLR 149 at [37] and [39]. They are applicable here. The primary judge was in error in striking out those matters and in refusing the appellants leave to plead those that were proposed to be pleaded in the 2FASOC.

200    In the result, I would allow appeal ground 5.

Orders to be made on grounds 4 and 5

201    As explained (at [175] above), the primary judge’s order 8 should be set aside as MATAR’s interlocutory application to set aside service was bound to fail once the primary judge concluded that certain claims should continue to trial. It should be replaced with an order that MATAR’s interlocutory application be dismissed with costs.

202    Order 3 by which the appellants were granted restricted leave to replead should also be set aside.

203    There does not appear to be any reason why the amendments reflected in the proposed 2FASOC concerning the claims against MATAR should not be allowed. However, in view of the need for the appellants to prepare a different second further amended statement of claim in relation to Qatar Airways and to delete the claims against QCAA as decided separately, and the appellants’ acceptance that certain of the allegations pleaded by them cannot be maintained, there is no point in granting the appellants leave to file their proposed 2FASOC. By order 1, his Honour dismissed that application. That order should stand.

204    The principal point of the appellants’ success in the appeal is that they are not precluded from pleading, at an appropriate time, the claims and averments which have been identified above as permissible or possibly permissible. Unless the relevant respondent consents, the appellants will have to apply for leave to file an identified pleading. To put their entitlement to do so beyond doubt, they should have liberty to apply to do so.

205    Given the conclusions above, there is no longer any need or basis for the primary judge’s orders 4, 5, 6, 7, 9 and 10. Those orders should be set aside.

Associate:

Dated:    24 July 2025

STELLIOS J:

206    I agree with the reasons of Stewart J.

Associate:

Dated:    24 July 2025

SCHEDULE OF PARTIES