After a baby was found abandoned in an airport bin, the women were directed off the Qatar Airways flight to Sydney, led down to ambulances parked under the aircraft, and subjected to searches by a woman who their lawyers could not confidently confirm was a nurse.

The women claimed men carrying guns met them in the terminal, barely anyone spoke English, and no one official told them what was happening. While what came next was referred to as an examination in court, their lawyer said this was a “lessening of more than it deserves”.

In 2021, a claim for alleged unlawful physical contact and false imprisonment was filed against Qatar Airways, the Qatar Civil Aviation Authority, 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 said 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.

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Appearing for the five women on Monday, 24 March, barrister Christopher Ward SC said that were it not for Justice Halley’s false interpretation of the Montreal Convention, the court “would have found a duty of care was owed by Qatar Airways to the applicants”.

“At the very least, for the purposes of the principles relating to what amounts to a strike-out, the proposition is seriously arguable, and we say it is likely, if not certain, to succeed … and it is certainly not so tenuous or inherently difficult that it ought to have been struck out without trial,” Ward told the full court bench in opening submissions.

Ward said that if granted leave to appeal from Justice Halley’s decision, the applicants would argue the defendants “all knew what was going to happen” to the women and were “independently responsible” to them for any loss or damages they suffered as a result.

One of the women said she was doing “everything purely out of fear” that she would not be allowed back on the aircraft with her husband.

Another, who was 73 at the time, said she left at the direction of the air hostess, who told her to “hurry up” and leave the aircraft. When she asked what was happening, the elderly woman was met with silence.

It was not until the woman asked whether it was a terrorist situation that the air hostess said it was not and that she should not be frightened.

“It is unassailably correct that, at least [at] that point, the air hostess knew exactly what was going on and, undoubtedly too, do we say, did the captain and others onboard the aircraft,” Ward said.

The woman was sent back to the aircraft when they realised her age.

The applicants’ case would rely on section 17 of the Montreal Convention, which refers to the liability the air carriers hold for the damage sustained in case of an injury or death upon the condition that it occurred on board or in the course of embarking or disembarking the aircraft.

Ward submitted it was a condition of embarkment onto the aircraft that the women enter the ambulance for the invasive examinations.

“We say what happened in the ambulances was condition upon which the women were going to be allowed to return to their flight,” he said.

According to media reports referenced during Monday’s hearing, media reports suggested one police officer was prosecuted as a result of what occurred. Ward said the fact Qatar Airways singled out one person did not impact the civil and criminal liability it still faces.

One of the other criticisms levelled against the original hearing was that Justice Halley came to his decision based only on the evidence of the respondents when the applicants’ side had “not even started”.

Ward said the court should be “troubled” Justice Halley tossed the case based on the records of interview and the “inability of anyone on our side of the equation to be able to provide the best evidence”.

This was particularly in circumstances where Qatar Airways and the other respondents had pushed back against producing documents.

Ward said it was likely one of those documents would have established a contractual relationship between MATAR and the medical centres that exist permanently in the airport.

Bret Walker SC, appearing for the respondents, argued Justice Halley came to the correct interpretation of the Montreal Convention, specifically as it related to section 29, which sets out the conditions of liability and ensures it is not undermined by national laws.

“The position concerning the point which is decisive of Qatar Airways appeal is it is precluded of success by the terms of the convention as to be understood in light of authority, which ranges from the highly persuasive bordering on compelling to the positively binding.

“That is enough to deal with the Qatar Airways appeal, in particular, it means it is not to the point whether one could plead appropriately claims that would be recognisable where the common law of Australia to apply … or any other way in which the matter might be approached under Australian law because all and any of it, by the comprehensive language of article 29, is precluded,” Walker said.

The matter will return on Tuesday morning.