Baltic Shipping Company v Dillon - [1992] HCATrans 37

~ ';~~

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl13 of 1991
B e t w e e n -
BALTIC SHIPPING COMPANY

Appellant

and
JOAN NORMA DILLON

Respondent

MASON CJ
BRENNAN J
DEANE J

DAWSON J

TOOHEY J

GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 7 FEBRUARY 1992, AT 9.48 AM

(Continued from 6/2/92)

Baltic(3)

7/2/92

MASON CJ: Yes, Mr Downes.

MR DOWNES:

Your Honours, I was dealing with the claim for

restitution of the fare. The propositions which we
would seek to rely upon are, firstly, the right to
recover depends upon there being a total failure of
consideration and I took Your Honours yesterday to
the Fibrosa case as authority for that proposition.
Greig and Davis, at page 1281, citing the Fibrosa
case, states the same proposition.

The foundation of the concept of restitution lies in unjust enrichment.

Your Honour
Mr Justice Deane said that in Pavey and Matthews v
Paul, 162 CLR 221, and the passages are at 257 and
263. Your Honour the Chief Justice and

Mr Justice Wilson, at page 227, agreed with

Justice Deane. The House of Lords has recently
analysed the law of restitution in precisely the
same way and that is in Lipkin Gorman v Karpnale
Limited, (1991) 3 WLR 10.
Your Honours, the next proposition that we

rely upon -

MASON CJ:	Mr Downes, we do not seem to have a copy of that.
MR DOWNES:	It is only very recently reported, Your Honour.

It was not on our list, and we found it in the
library this morning, Your Honour. It is page 10,
Your Honour.

McHUGH J:

It has been out for a while.

I remember reading

it at least two or three months ago.

MR DOWNES:

I regret that it was only this morning that we -

the proposition there perhaps was not so centrally
relevant to what we were going to put today, that
it did not earlier seem - - -

McHUGH J: This is the Gambling Chip case?

MR DOWNES:

Yes, Your Honour.

Your Honours, the second

proposition is that a contract of carriage for
travel, and as such a variety of a contract for
services, ordinarily sounds in damages for breach, not in restitution. Greig and Davis use precisely
those words at page 1282.
Heywood v Wellers, (1976) 1 QB 446, is a good

illustration of the proposition. That was a
decision in which the question of whether a
solicitor had in effect performed his retainer at
all when he incurred a lot of costs on behalf of a
lady seeking non-molestation orders without

Baltic(3)

7/2/92

achieving any result at all. Lord Denning, at
page 458C says that:
the contract of the solicitors was an entire
contract which they were bound to carry on to
the end; and, not having done so, they were
not entitled to any costs -

and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1992] HCATrans 37
Decision Date

CaseChat Overview and Summary

This case concerns a dispute between the Baltic Shipping Company and a passenger, Ms. Dillon, regarding the recovery of a fare paid for a cruise. The matter came before the High Court of Australia.

The central legal issues before the court were whether Ms. Dillon was entitled to restitution of her fare, and if so, on what grounds. Specifically, the court had to consider whether there had been a total failure of consideration, and whether the contract for carriage was an "entire contract" such that partial performance did not entitle the provider to payment.

The court was presented with arguments that the foundation of restitution lies in unjust enrichment, as articulated in cases such as *Pavey and Matthews v Paul*. It was also argued that contracts for services, including contracts of carriage, ordinarily sound in damages for breach rather than restitution. An exception to this general rule arises where there is an entire contract, meaning no benefit is conferred unless the contract is fully performed, or where there is a total failure of consideration. The court was invited to consider whether the present case fell within these exceptions, with submissions made that the contract was not an entire one and that there had not been a total failure of consideration, given that the "very idea of travel" involved continuous movement rather than merely arrival at a destination.

Orders