The father of an 11-year-old girl killed when a seaplane crashed during a sightseeing trip in Sydney’s north has been barred from suing Sydney Seaplanes and ordered to pay the company’s costs after a successful appeal by the aircraft operator.
All six people on board the seaplane during a New Year’s Eve joy ride in 2017 – pilot Gareth Morgan, British tycoon Richard Cousins, his sons William and Edward, his fiancee Emma Bowden and her daughter Heather Bowden-Page – were killed when the aircraft nosedived into the Hawkesbury River at Jerusalem Bay, north of Cottage Point.
In October last year the NSW Supreme Court allowed Alexander Page, the father of Heather Bowden-Page, to proceed with a lawsuit against Sydney Seaplanes that he had originally, erroneously, filed in the Federal Court in December 2019.
As the seaplane’s fatal flight from Rose Bay to Cottage Point took place within NSW, the Federal Court had dismissed the claim, finding it had no jurisdiction to hear it. Mr Page then applied to have it heard in the Supreme Court, seeking to keep the original claim date, which was within two years of the crash – a requirement for lawsuit applicants seeking damages in civil aviation incidents.
On Tuesday, the NSW Court of Appeal dismissed the Supreme Court’s earlier ruling in Mr Page’s favour, barring him from continuing the lawsuit, and ordered him to pay Sydney Seaplanes’ costs.
In upholding the appeal, Justices Andrew Bell, Mark Leeming and Arthur Emmett said it was “no small thing” that a provision exists allowing certain matters to be backdated, essentially becoming “a retrospective fictional proceeding in the Supreme Court by way of statute”. This case, they ruled, did not fall under those covered by the statute.
“It is difficult to justify the operation of such an extreme measure as a safety net for litigants who misguidedly take the serious step of commencing proceedings in the Federal Court without first considering the issue of jurisdiction,” they stated.
Shine Lawyers, representing Mr Page, declined to comment on the outcome.