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The Full Federal Court has overturned a decision that a group of women subjected to invasive searches at Doha in October 2020 could not sue Qatar Airways for their ordeal.
The five Australian women were left traumatised after strip-searches and physically invasive examinations were performed on them following the discovery of a baby abandoned in an airport bin, with their lawyers having argued earlier this year that they were “shut out” of the case.
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In 2021, a claim for alleged unlawful physical contact and false imprisonment was filed against Qatar Airways, the Qatar Civil Aviation Authority (QCAA), and airport operations company MATAR, but their case was tossed out by Justice John Halley before it reached trial.
In his April 2024 decision, Justice Halley had ruled Qatar Airways could not be held responsible under the Montreal Convention, which governs an airline’s liability in the event of a passenger’s death or injury.
“In no view did the invasive examinations … take place ‘on board the aircraft’ or in the course of embarking or disembarking the aircraft,” he said.
“The exclusivity principle in the Montreal Convention therefore precludes the applicants advancing this claim and it must therefore be summarily dismissed or struck out.”
However, the full court has set aside his judgment, saying the matter should proceed to trial and cannot be decided by summary dismissal.
“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,” Justice Stewart wrote in a summary of the decision.
“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.”
The court also said MATAR’s potential liability could not be set aside for the actions of Qatar Ministry of Interior (MOI) officials or the person identified as a “nurse” who performed the invasive searches.
“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,” Justice Stewart wrote.
“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.”
The court did uphold a decision, however, that the QCAA could not be sued as it is a “separate entity of a foreign State” and thus immune under Australian law.
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says:This case is probably another reason for us to call into question the roll of courts and their application to the interpretation of the law/s applicable to “an event”.
This particular unsavory event should not have happened period. Whilst the victims are entitled to pursue recompense firstly, they have to clearly identify the “who what and why” the matter happened.
Did Qatar Airways authorise or partake in the actual event? – Did another company/authority owned and operated by Qatar Airways perform the said events? or was a Qatari governmental authority the offender.
We need to know or maybe the victims should firstly, was this matter taken up with the Australian Govt. for their investigation and action and what was the result and recommendation?
Whatever the answers, the lawyers don’t miss out and we end up with another case based on law and not one supporting justice to the individual/s concerned.