FEDERAL COURT OF AUSTRALIA
DHI22 v Qatar Airways Group QCSC (No 1) [2025] FCAFC 91
&
DHI22 v Qatar Airways Group QCSC (No 2) [2025] FCAFC 92
Summary
In accordance with the practice of the Federal Court in some cases of public interest, importance or complexity, the following summary has been prepared to accompany the reasons for judgment and orders made today. This summary is intended to assist in understanding the outcome of this proceeding and is not a complete statement of the conclusions reached by the Court. The only authoritative statement of the Court’s reasons is that contained in the published reasons for judgment which will be available on the internet at www.fedcourt.gov.au together with this summary.
On 2 October 2020, a Qatar Airways flight bound from Doha to Sydney completed boarding and prepared for departure. It was then prohibited from departing and all women passengers were directed to leave the aircraft. The five appellants, all women, were directed to an ambulance parked on the tarmac where four of them were subjected without consent to bodily examinations. For three of the appellants, the examinations were invasive. The women were then directed to return to the aircraft which subsequently departed for Sydney. The examinations occurred because, according to the Qatar Ministry of Interior (MOI), a newborn baby had been discovered abandoned in a bathroom within the airport terminal, precipitating an intensive and wide-ranging search to identify the mother.
The appellants commenced a proceeding in the Federal Court against three respondents: the airline, Qatar Airways Group QCSC (Qatar Airways); the Qatar Civil Aviation Authority (QCAA); and the airport operator, Qatar Company for Airports Operation and Management WLL (MATAR). Against Qatar Airways, claims are made under Art 17 of the Montreal Convention governing liability of air carriers and in negligence at common law. Against QCAA and MATAR, the claims are made for negligence, assault, false imprisonment and battery.
The primary judge heard interlocutory applications filed by each of the parties to the proceeding. Qatar Airways applied for summary dismissal, or, alternatively, a strikeout of various paragraphs of the appellants’ pleadings. QCAA applied for service on it outside of the jurisdiction to be set aside on the basis of its claim for foreign State immunity. MATAR applied for service upon it outside the jurisdiction to be set aside on the basis that the claim had insufficient prospects of success. In response to MATAR’s application, the appellants applied for leave to amend their pleadings. The primary judge heard the applications by Qatar Airways, MATAR and the appellants in a combined hearing, and then heard QCAA’s application in a separate hearing. His Honour determined the applications in two separate sets of orders and reasons for judgment. In short, the respondents were mostly successful in their applications.
The appellants applied to the Full Court for leave to appeal, and appeal if leave were granted, from both sets of orders. The Full Court has dealt separately with the appeal from each set of the primary judge’s orders, simultaneously handing down separate reasons.
DHI22 v Qatar Airways Group QCSC (No 1) [2025] FCAFC 91 (Qatar Airways and MATAR)
With respect to Qatar Airways, the primary judge granted summary judgment dismissing all causes of action against it. This was on the basis that the Montreal Convention claims have no reasonable prospect of succeeding because the invasive examinations did not take place in “the course of any of the operations of embarking or disembarking” the aircraft as required by Art 17. Further, the primary judge concluded that the negligence claims of all appellants, even if not within the scope of Art 17, are claims arising in the course of “international carriage by air” and are therefore within the applicable scope of the Convention and are excluded by the exclusivity principle in Art 29. In the alternative, the primary judge would have struck out the negligence claims to the extent that they rely on what happened on the tarmac (ie, outside the aircraft).
The Full Court has found that the primary judge erred in summarily dismissing the Art 17 claims. Whether or not the claims come within the scope of Art 17 is a matter of some complexity, turning on assessments of fact and degree. There is no sufficiently high degree of certainty that what happened to the appellants in the ambulance could not ultimately be found to have been in “the course of any of the operations of embarking or disembarking”. It is therefore not an issue apt to be decided at the stage of summary dismissal. On the exclusivity principle, the text and purpose of the Convention, as well as the authorities, favour the construction that the temporal scope of Art 29 is the same as that of Art 17 with the result that if the claims are outside the temporal scope of Art 17 they will not be excluded by Art 29. As with the Art 17 claims, that issue can only be decided at trial and not on a summary basis.
With respect to MATAR, the primary judge struck out parts of the appellants’ pleadings on the basis that the tortious claims against MATAR have no reasonable prospect of success insofar as they seek to attribute liability to MATAR for the conduct of MOI officers and the person who conducted the examinations in the ambulance identified as a “nurse”. The primary judge was satisfied there was no evidence available to refute MATAR’s evidence that those persons were not agents or acting under MATAR’s direction or control. The primary judge also held that MATAR’s duty of care did not extend to taking steps to prevent the examinations. The appellants were granted leave to file revised pleadings limited to claims not founded on those propositions.
The Full Court has found that once it was held by the primary judge that some claims against MATAR can proceed to trial, MATAR’s application to set aside service should have been dismissed. Further, 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. It is also 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.
DHI22 v Qatar Airways Group QCSC (No 2) [2025] FCAFC 92 (QCAA)
The primary judge found that QCAA is a “separate entity of a foreign State” for the purposes of the Foreign States Immunities Act 1985 (Cth), to be treated as if it were a foreign State by operation of s 22 of the Act. The primary judge thus set aside service because s 9 provides that “a foreign State is immune from the jurisdiction of the courts of Australia in a proceeding” and the exception to immunity in s 11(1) “in so far as the proceeding concerns a commercial transaction” does not apply. The primary judge concluded that, first, the proceeding did not “concern” a commercial transaction and that, secondly, the conduct alleged is not a “commercial transaction” or “like commercial activity”.
The Full Court has dismissed the appeal. The relevant conduct forming the basis of the pleading, and consequently what the proceeding “concerns”, is QCAA’s alleged participation in, or failure to prevent, the MOI police operation culminating in the invasive examinations. This could not plausibly be characterised as a commercial or like activity, having instead the character of an “inherently government or sovereign act”. The presence of the appellants at the airport “but for” the commercial transactions entered into with Qatar Airways is also insufficient to satisfy the requisite connection under s 11(1). Similarly, the proceeding does not concern QCAA’s activities in managing a commercial airport. Any connection between the substance of the pleaded case and those other transactions or activities is remote, insubstantial or adventitious. In any event, the evidence before the primary judge shows QCAA’s management activities were in pursuit of public functions of the State of Qatar which indicates there is no basis to draw a reasonable inference that those activities are commercial transactions.
Relief
The Full Court has set aside the orders of the primary judge summarily dismissing the claims against Qatar Airways and giving strike out relief in favour of MATAR. It has also granted liberty to the appellants to apply to file amended pleadings and ordered Qatar Airways and MATAR to pay the costs of the appeal. As regards QCAA, the Full Court has dismissed the appeal with costs.
MORTIMER CJ, STEWART AND STELLIOS JJ
24 JULY 2025
