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Qatar Airways is looking to appeal to the High Court a finding that it can be held liable for invasive searches at Doha five years ago.
The Gulf carrier has applied for leave to appeal to Australia’s highest court after the Full Federal Court overturned a lower court’s ruling that it could not be sued by five Australian women over their ordeal, which took place at Hamad International Airport in October 2020.
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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.
In its filing, Qatar Airways cited the “importance in ensuring that international treaties be interpreted uniformly by contracting states, consistent with the principles of treaty interpretation accepted by this court” and asked for a stay on the full court’s ruling while its case proceeded.
“There is also a broader public interest in addressing the special leave question, to ensure certainty in the application of the exclusivity principle more broadly for those entities which operate in the aviation industry,” the airline said.
However, Dr Chris Ward, lawyer for the women, said in court that Qatar’s application is “tenuous in its likelihood of success” and accused it and airport operations company MATAR of delaying tactics.
“The Full Court’s judgment in this case makes clear that the pleaded case is sufficient to go ahead as it stands. The case should proceed,” he said.
“The respondents (Qatar Airways) have had three years to understand the current pleading against them – rather than shadow boxing, they can put on a defence to it.”
Justice John Halley has told Qatar to file its defence by 23 September.
In 2021, a claim for alleged unlawful physical contact and false imprisonment was filed against Qatar Airways, the Qatar Civil Aviation Authority (QCAA), and MATAR, but their case was tossed out by Justice 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 set aside his judgment, saying the matter should proceed to trial and cannot be decided by summary dismissal.
The women have also filed leave to apply to the High Court over a ruling that the QCAA, as an entity of a foreign state, cannot be held liable.
