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Australian women strip-searched at a Doha airport have fought to access a never-before-seen contract between an airport operations company and Qatar Civil Aviation Authority to support their case, but their counsel was pulled up on an apparent failure to pursue evidence.
Over a two-day hearing, five Australian passengers of Qatar Airways have tried to breathe new life into proceedings concerning the physically invasive searches they were subjected to in October 2020 after an abandoned baby was found at Hamad International Airport.
The proceedings were originally thrown out before trial by Justice John Halley in mid-2024 when he found Qatar Airways, the Qatar Civil Aviation Authority (QCAA) and airport operations company MATAR could not be held responsible under the Montreal Convention.
On day one, Christopher Ward SC, counsel for the applicants, said Justice Halley had a false interpretation of the Montreal Convention – which governs an airline’s liability in the event of a passenger’s death or injury – and should have found Qatar Airways owed a duty of care.
The second day centred on a contract between MATAR and QCAA, which has yet to be produced to the Federal Court despite Ward’s submissions the applicants have repeatedly asked for it to be.
It was alleged this contract allowed for MATAR to operate the commercial activity and operation of the airport. This meant it was in play when the women were directed off the Qatar Airways flight and led down to the ambulances on the tarmac below the aircraft.
Due to the contractual arrangement, Ward alleged the women “were present at the airport only because they entered into a commercial transaction [to be] safely carried from points in Europe to Sydney”. It is by reason of this they were susceptible to the invasive searches.
On the applicants’ case, Justice Halley was “fully alive to the contract” and its supposedly “obvious significance in the proceedings”, but it did not form any part of his reasonings. Ward said that only brief reference was made in a summary of the submissions made by the applicants.
Ward also argued Justice Halley erred by concluding the QCAA’s conduct on the night did not have the character of a commercial or like transaction because his sole focus was on the role of the offices. This may have granted the respondents a form of state immunity.
“His Honour … seems to have assumed that because it involved a Minister of Interior police operation, it could not have the character of a commercial or like transaction, but that is not the question [and] that is not the solution to the problem,” Ward said.
Ward went on to say there has always been a “broader approach” to the underlying commercial transaction or like activity because the applicants were only in the position they were in on that October 2020 night because of a “mix of a web of commercial matters”.
“The moment the immunity bar is lifted the respondents will, in our submission, plainly be ordered to produce a copy of the MATAR contract to this court and to the applicants,” Ward said.
Counsel for the respondents argued that to succeed, the applicants would need to go beyond Justice Halley’s decision to establish the QCAA benefited from a windfall via its supervision of MATAR. He also claimed Ward could have chosen to interrogate a witness about this contract and the money flow but chose not to.
“You would be very slow in finding that QCAA funds included anything but its government-approved budget,” the counsel said.
Ward objected to there being a need to prove the cash flow from MATAR to QCAA, “although likely there is one”. He said the commercial contract the proceedings should most be concerned with is the MATAR one, “the existence of which is in no doubt”.
He then went on to claim that while there is an obligation for the applicants to raise their case on a prima facie level, they have “done everything they possibly can to do so” in the absence of the contract.
This submission drew the attention of the bar table, who questioned why Ward did not seek to cross-examine the expert.
When Ward attempted to wave this off by explaining it was not for him to lead evidence by way of cross-examination, he was asked why in circumstances where the expert may have resolved some concerns.
“I can’t ask questions to which I have no proper foundation,” he said.
This was again rebuffed, with Ward eventually submitting it was not the applicants’ onus to seek evidence that was entirely in the control of MATAR.
The decision has been reserved.
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
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