Move to block air law­suit re­jected

The Cairns Post - - NEWS - PETE MARTINELLI peter.martinelli@news.com.au ed­i­to­rial@cairn­spost.com.au face­book.com/TheCairn­sPost www.cairn­spost.com.au twit­ter.com/TheCairn­sPost

A WRONG­FUL death trial over the 2005 Lock­hart River air crash is still likely to go ahead in the Amer­i­can state of Mis­souri af­ter a sec­ond le­gal chal­lenge to halt pro­ceed­ings has failed.

Jus­tice Ann Lyons of the Bris­bane Supreme Court this month re­jected an ap­pli­ca­tion made by Mackel­lar Min­ing Equip­ment Pty Ltd and Dra­matic In­vest­ments Pty Ltd to stay the de­ci­sion of Au­gust 23.

Cairns Supreme Court last month re­fused an “anti-suit in­junc­tion” by owner of the plane, Part­ner­ship 818 and lessee Tran­sair’s man­ag­ing di­rec­tor and chief pi­lot, Les­lie Wright, who in­spected the air­craft while it was stored in Mis­souri.

Sixty-one rel­a­tives of the 15 peo­ple who died on May 7 when the Fairchild Metro 23 air­craft crashed into a moun­tain in the Iron Range Na­tional Park be­gan le­gal ac­tion in Mis­souri against Part­ner­ship 818 and Mr Wright in May 2008.

The new ap­pli­ca­tion would have halted the rel­a­tives from purs­ing their suit.

“The ap­pli­cants sought a num­ber of dec­la­ra­tions and or­ders which would have per­ma­nently re­strained the first to 61st re­spon­dents from es­sen­tially tak­ing any step to pur­sue pro­ceed­ings which are cur­rently listed for a three-week trial in Mis­souri in July 2019,” Jus­tice Lyons wrote. “The ap­pli­cants ar­gue that if the stay is re­fused, the re­spon­dents would ap­ply for an anti-suit in­junc­tion in Mis­souri.”

She ruled that the re­spon­dents had suc­cess­fully ar­gued that there would be “sub­stan­tial dis­ad­van­tage to them” should the stay be granted.

“I am not sat­is­fied that the ap­pli­cants have es­tab­lished that they would suf­fer any ac­tual dis­ad­van­tage if the stay is not granted,” Jus­tice Lyons wrote. She made par­tic­u­lar men­tion of an af­fi­davit by Pa­trick Nu­nan, which out­lined the “enor­mous amount of work” re­quired to ob­tain up­dated state­ments from vic­tims’ fam­i­lies liv­ing in Ba­m­aga.

“Given the sig­nif­i­cant dis­ad­van­tage which Mr Nu­nan has out­lined, I am sat­is­fied that a suf­fi­cient ba­sis has been shown for the re­fusal of the stay,” Jus­tice Lyons stated.

In ad­di­tion to the tyranny of dis­tance and the re­stric­tions of move­ment im­posed by the sea­sons, Mr Nu­nan em­pha­sised the lan­guage bar­ri­ers the le­gal team faced.

“What makes the prepa­ra­tion for the Mis­souri trial even more dif­fi­cult as far as the Ba­m­aga plain­tiffs are con­cerned, is that a great ma­jor­ity of them do not have English as their first lan­guage,” Mr Nu­nan stated in his af­fi­davit.

“For some English is their third lan­guage.”

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