The father of a young girl killed when a seaplane plunged into a river cannot continue his lawsuit against the operators, after a successful appeal by Sydney Seaplanes.
The DHC-2 Beaver, piloted by Gareth Morgan, crashed on December 31 2017 while returning to Sydney with high-profile British businessman Richard Cousins and his family.
The group was completing a Sydney Seaplanes sightseeing trip north of the city when the plane made a sharp turn after take-off and nosedived into Jerusalem Bay on the Hawkesbury River.
Mr Morgan, Mr Cousins, his adult sons Edward and William, fiancee Emma Bowden and her 11-year-old daughter Heather all died.
In 2020 , Heather's father, Alexander Mathew Brodie Page, was given the green light by Justice Christine Adamson to continue his lawsuit in the Supreme Court after it was dismissed in the Federal Court.
But the NSW Court of Appeal on Tuesday allowed an appeal by Sydney Seaplanes, dismissed Mr Page's summons and ordered him to pay the operator's legal costs.
He had begun proceedings in the Federal Court in 2019 claiming damages under the Civil Aviation (Carriers' Liability) Act.
But a judge later dismissed the case ruling the Federal Court didn't have the jurisdiction to hear the case as the flight took place solely in NSW.
A year later, Justice Adamson ruled that the Federal Court proceedings be recorded as proceedings in the Supreme Court and deemed to have begun in December 2019.
The legislation provided that a party to a proceeding in which "a relevant order" is made may apply to the Supreme Court for an order that the proceeding be treated as a proceeding in the Supreme Court.
But the Appeal Court found that the order dismissing the original Federal Court proceedings for want of jurisdiction was not "a relevant order" within the meaning of the State Jurisdiction Act.
If the definition under the act was given its literal meaning, its application will give rise to "capricious outcomes which are, on conventional principles of statutory construction, to be avoided", the appeal court concluded.
An Australian Transport Safety Bureau report in January found the pilot had been confused, disoriented and affected by poisonous exhaust gas in the moments before the seaplane plunged into the bay.
Its three-year investigation, hampered by the plane's lack of a recording device, confirmed that exhaust gas leaked into the cabin, poisoning the pilot and passengers with carbon monoxide.
