Baltic Shipping Company v Dillon

[1991] HCATrans 209

..

' 'I

• ~

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S21 of 1991

B e t w e e n -

BALTIC SHIPPING COMPANY

Applicant

and

JOAN NORMA DILLON

Respondent

Application for special leave

to appeal

BRENNAN J
DAWSON J

GAUDRON J

~

Baltic 1 9/8/91

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 9 AUGUST 1991, AT 2.42 PM

Copyright in the High Court of Australia

MR c.s.c. SHELLER, QC: If Your Honours please, in this

matter I appear with my learned friends,

MR A.W. STREET and MR R.N. GYE, for the applicant.

(instructed by Norton Smith & Co)

MR P.E. KING: If Your Honours please, I appear for the

respondent. (instructed by Withnell & Co)

MR SHELLER:  Your Honours, this is an appeal from a majority

judgment of the Court of Appeal given on

19 February 1991, the majority then made up of the

Chief Justice and the President, Mr Justice Mahoney

dissenting. That dismissed an appeal from

Mr Justice Carruthers sitting in Admiralty. May I

hand up to Your Honours an outline of submissions.

BRENNAN J: Yes, Mr Sheller.

MR SHELLER:  Your Honours, the plaintiff/respondent,

Mrs Dillon, was a passenger on the applicant's vessel when it sank off Cape Jackson, New Zealand,

on 16 February 1986 and on her claim, the trial

judge awarded damages which fell under a number of

heads which are set out on page 104 of the

application book, starting at line 21, "Restitution

of fare", with which this application is concerned,

then a head called, "Compensation for

disappointment and distress at the loss of the

entertainment" and so on. The other two heads,

"Loss of money" and "Damages for personal injuries"

are not directly challenged as to quantum, except

to the extent that they are affected by two

matters, namely the terms of the contract of

carriage and the validity of a release which was

given by Mrs Dillon. During the hearing,

negligence was admitted by the applicant.

Your Honours, the importance of the case which

we will seek to develop is in the context that

Mrs Dillon was one of a total of 410 passengers on

the vessel, of whom 123 have been joined as

plaintiffs in this particular action, and the
particular matters that we are here to debate

involve to a greater or lesser extent the claims of

other passengers, but for the purposes of this

application, more importantly relate generally to
the carriage of passengers on cruise liners, in

particular the applicability of terms of contract

contained in the passenger ticket; the ability of

parties to settle claims and give releases and, in

relation to restitution of the fare and

compensation for disappointment and distress, the heads of damage under which recovery can be made.

The particular points can be summarized by

saying that, as was acknowledged, there were two

obstacles in the way of the plaintiff's success in

Baltic 2 9/8/91

the case to the extent to which it here recovered:

firstly, the limitation clause in the ticket and,

secondly, the effect of a release which was signed

by Mrs Dillon on 16 June 1986. It appears that of

the 410 passengers, the claims of 375 were settled

and a release obtained. That is referred to,

Your Honours, in the application book at page 55.

The two heads of damage, the restitution first, are challenged in the case of that on the basis of

whether a passenger is entitled to restitution of

the full fare where the cruise, during its course,

is brought to an end by an accidental event. In

this particular case, Your Honours, it was a 14-day

cruise which commenced on 7 February 1986 and the

vessel foundered on 16 February 1986.

The second point on the head of damages is

whether as a matter of Australian law, in an action

for breach of contract, damage is recoverable for

disappointment and distress. In this Court,

Sir Owen Dixon, joined by Mr Justice McTiernan,

said that such damages were not recoverable.

Your Honours, if I may deal first with the question of ticket limitation. There is, as was

recognized by Your Honour Justice Brennan, in Fay v

Oceanic Sun Line what is called a conventional

analysis in terms of ticket conditions. By

"conventional", it is to be understood that there

is a standard analysis of tickets and the

conditions in them according to which passenger
tickets are issued by companies such as the

applicant and that is that if the ticket, drawing

attention to terms and conditions, issues to a

passenger, that should be treated as an offer and

the passenger accepts that offer on the terms set

out in the ticket.

In this case, the majority in the Court of

Appeal did not apply that analysis for reasons

which we respectfully submit are not sustainable

but which have widespread ramifications for the

industry generally.

Your Honours, the form of the ticket is to be found at page 182 in the application book and this

is in the judgment of the dissenting judge,

Mr Justice Mahoney, but if I could invite

Your Honours to go to line 22, His Honour describes

it as consisting:

of a ticket inside ..... a cover or folder. The

ticket itself set forth the cabin berths, the

grade, the names of the passengers ..... It

purported to record that it was "issued in

exchange for deposit receipt, ticket or

order". And it had, in capital letters, in a

Baltic 9/8/91

prominent place, on the top left hand corner

of it, the words:  "ISSUED SUBJECT TO TERMS &

CONDITIONS PRINTED ON COVER OF THIS TICKET".

Then if Your Honours go over the page, in

clause 2(a) and (b), there is found the limitation:

for loss or damage suffered as a result of -

and there is a misprint in the application book.

It ought to read:

as a result of the death of or personal injury

to a Passenger only if the incident which

caused the damage so suffered occurs in the
course of the Carriage and was due to the

fault or neglect -

And then:

In any circumstances referred to in sub-

clause (a) of this clause the Company's

liability shall in no case exceed 46,666 Units

of Account per carriage.

So far as luggage is concerned, that is included in

clause 3(a) and (b)(i) where the unit of account is

833 per passenger per carriage.

Your Honours, those units of account are taken

from the Athens Convention and are explained by

definition to special drawing rights which have a value in terms of Australian dollars which varies

from time to time.

BRENNAN J:  Is there anything on the ticket which indicates

what is meant by units of account?

MR SHELLER:  Yes, Your Honour. It is not in fact printed in

the appeal book but it is clause 26 in which it is

defined by reference to special drawing rights

under the International Monetary Fund.

Your Honours, may I, just to put it into context,

hand up to Your Honours a chronology. The ticket

was received by Mrs Dillon on 24 January 1986.

Prior to that, on 30 October 1985, there had been

what is described as the issue of a statement of

account by a travel agent and the payment of a

deposit of $100. For our purposes, Your Honours,

we think it unnecessary to go to that particular

document.

On 9 November 1985 there issued what was

called a booking form and if Your Honours go back

from page 183 to page 181 Your Honours will see a

description of the issue of the booking form. It

is described as:

Baltic 4 9/8/91

a printed form apparently printed for CTC

Cruises" -

which was the applicant's agent -

and used for the activities of the defendant.

It was apparently issued in several copies.

One copy was given or provided to the

plaintiff, presumably one copy was kept by

Jayes, and the document contemplated that one

copy would be sent to the plaintiff.

The document, omitting irrelevant parts,

was in the following form:

and Your Honours will see set out references to the

sailing date, passenger's name and so on.	Then at
the bottom, the ultimate balance due on
9 December 1985 of $2125. At page 182:

PAYMENT DETAILS:  We hereby enclose cheque in

regard to the above booking.

Then what was of central 'importance to this case,

the next passage which reads:

THIS IS NOT A TRAVEL DOCUCMENT - Contract of

Carriage for travel as set out herein will be made only at the time of the issuing of

tickets and will be subject to the conditions

and regulations printed on the tickets. These

conditions and regulations are available to

all passengers at any CTC Cruises offices.

Cancellations: Passengers are advised that in the event of Cancellation the following

charges will apply:

And then they are referred to. Then:

CTC CRUISES OFFICE USE ONLY
...

PLEASE MAIL THIS COPY TO CTC CRUISES

As appears from what is said there by

Mr Justice Mahoney and from our chronology, on

6 December 1985 the balance of the fare was paid

and then, as I indicated earlier, on 24 January the

respondent received her ticket and on 7 February

the ticket was presented and the cruise commenced.

It is perhaps important to note that in the

judgment of the trial judge at page 4 of the

application book it was said that - the form is

described and then at line 26 His Honour

Mr Justice Carruthers said:

Baltic 9/8/91

The intention is that the blue copy be mailed

by the passenger to CTC Cruises with the

balance due on the fare.

As I indicated to Your Honours, and as appears from

page 2, CTC Cruises was the agent for the

shipowner.

Your Honours, what we submit in this case is that it was a classic case for the application of

the conventional analysis; that the contract was

not complete as soon as the cheque was paid or the

ticket reached the passenger but, in terms of what

Your Honour Justice Brennan said in Oceanic Sun

Line, a ticket containing conditions of contract is

ordinarily treated as an offer by the carrier to

carry on those conditions, no contract coming into

existence.

BRENNAN J:  Now, the finding was against you in that respect

because, inter alia, of the language of the booking

form.

MR SHELLER:  Yes. Can I take Your Honours to what the

Chief Justice said about that because that is the

critical point at which we take issue.

BRENNAN J: Yes.

MR SHELLER:  I was going to hand up to Your Honours - we

have a bundle of various matters to which we may

refer. Can I pass these to Your Honours, and I

just wanted to say I should have given Your Honours

the precise reference in Oceanic Sun Line,

165 CLR 197, and it is at page 69 in the book we

have handed to Your Honours, the marking at the

bottom right-hand corner, and it is at page 227 of

the report, about half-way down the page, the

second sentence into the paragraph in Your Honour's

judgment. That, of course, was an analysis that

had been adopted in this Court in the Airline

Ticket case, MacRobertson Miller Airline Services v

Commissioner of State Taxation, (1975) 133 CLR 125, and also, of course, sprang from the decision of

the House of Lords in Hood v Anchor Line,

(1918) AC 837.

BRENNAN J: That is the conventional method of analysis but

you have a particular fact situation and - - -

MR SHELLER:  I appreciate that, Your Honour, but I want, if

I can, to start by laying the foundation of that

analysis and, of course, can I just say this before

coming to what the Chief Justice says about it,

that in the Fay case, that was held not to apply

because of an exchange order which was given by the

shipowner in return for the fare and which obliged

Baltic 6 9/8/91

the shipowner to issue a ticket. The exchange

order did not refer to the terms and conditions;

the ticket did, but it was said by Your Honour, and

indeed all members of the Court, that in fact the

issue of the exchange order as it were made the

contract and the contract was not subject to the

terms and conditions.

Can I now go, Your Honours, to what is said

here by the Chief Justice at page 114 in the

application book and the critical part is found

commencing at line 20 where His Honour says:

I see no justification for disregarding

contract of carriage would be made only at the
time of the issue of ticket to the respondent.

the stipulation in the Booking Form that the inapplicable what has been called the

"conventional analysis" exemplified by Hood v
Anchor Line (Henderson Bros) Ltd

(1918) AC 838. Upon that analysis the issue

of the ticket is only an offer, and the

contract is formed when the passenger, having

had an opportunity to consider the terms of
the offer, accepts it. That analysis would be
contrary to the terms of the appellant's own

document.

Indeed, Your Honours, it seems that the

President at page 150, though in somewhat different

language, reached the same conclusion when he said,

at line 21:

The result is that, applying what I take

to be the approach sanctioned by the High

Court in Fay, the contract of carriage here

came into force at the time appointed and

notified in the booking form.

All this proceeds on the basis that the booking

form itself is not a contractual document because

that is what also it says: this is not a

contractual document. So that what one has here is

a document which has the same status, on this

analysis, as the brochure in the Fay case, a

non-contractual document which dictates the

contractual relationship in the sense that it is

said that it is because of what appears in that

document that the ticket is not what it would

conventionally be treated as, namely the offer.

Now, we respectfully submit that is an

inappropriate approach to determining what a

contract is. To take some document that is said

not to be part of a contract, but give it

Baltic 7 9/8/91

contractual force by dictating what otherwise would

be the consequence of the exchange of documents.

BRENNAN J: But is that so? I mean, if one is searching for

a consensus one looks at all the surrounding

circumstances to discover yea or nay, does one not?

MR SHELLER:  Your Honour, one does, but the problem with

that approach here is that the booking form itself

is made subject to the terms and conditions of the

contract and it is in a form which seems to be

intended to go forward with the payment. That

appears at page 182, Your Honour, that part of the

booking form.

THIS IS NOT A TRAVEL DOCUMENT - Contract of

Carriage for travel as set out herein will be made only at the time ..... and will be subject

to the conditions and regulations printed on

the tickets .

If one treats the issue of the ticket as the acceptance, one asks rhetorically, what, then, is the offer? Now, Your Hortours, if the approach is

taken that this particular booking form is no part

of a contract and cannot be, and does not dictate

the terms, then the offer is simply what one finds

in the conventional analysis. If, however, it has

some contractual effect, then it carries with it,

we submit, an offer with the terms and conditions

attached to it which, incidentally, was the

approach that was taken in Fay's case by the

majority, the judgment of Mr Justice McHugh, in the

Court of Appeal in that case.

But what we submit is that by issue of a

document which has no contractual force whatever,

if that is the right way of looking at it and,

primarily, we would submit that that is the correct

..	way of looking at it, and which is the way that the
Chief Justice has treated it, then one simply has a
payment shorn of any particular conditions attached to it and one has the issue of a ticket which has
conditions attached to it. Conventionally that
ticket is treated as an offer. It may be more
appropriate to treat it as a counter offer, that is
to say that it raises conditions that are not part
of the offer but either way, we would respectfully
submit, one leads to the position where the ticket
is what contains the terms and conditions which it
is then open to the passenger to either reject or
accept. The approach, we submit, that is taken by
the Chief Justice just produces no offer, unless it
be itself an offer, which is subject to terms and
conditions.
Baltic	9/8/91

I should perhaps say, Your Honours, that as

part of that the travel document itself, when it

says that the contract of carriage will be made

only at the time of the issuing of tickets, we
would respectfully submit, is as a matter of

language consistent with the conventional idea that

the issuing of the tickets is the commencement of

the contractual relationship. So far as treating

it as an offer or a counter offer or an acceptance,

can I give Your Honours a reference to -

BRENNAN J: Mr Sheller, you might like to proceed to your

next point.

MR SHELLER:  If Your Honours please. The next point relates

to the Contracts Review Act. In this case this

turns upon the issue or the signing of a release

which is printed out in the President's judgment at

page 131 and it was said to offend the provisions,
both in terms of the events leading up to it and

the position of the plaintiff, offend the
provisions of the Contracts Review Act and,

Your Honours, the Contracts Review Act is contained

in our bundle of documents. At page 117, in the

namely, of course, that:

judgment of the Chief Justice, dealing with the policy matters,

The general policy of the law is that

people should honour their contracts .... there

is a particular policy of the law to encourage

resolution of litigation by settlement -

and then, in that context, further down, His Honour

refers to:

Most people regard the prospect of a long and

expensive court case with dismay.

If Your Honours look at page 5 in the bundle in the

Contracts Review Act Your Honours will observe that

the court is required to have regard to the public

interest in section 9(1) and in section 9(4) it:

shall not have regard to any injustice arising

from circumstances that were not reasonably

foreseeable at the time the contract was made.

In the Court of Appeal there has been a particular

judgment of West v Australian Guarantee

Corporation which is set out at page 79 in the

bundle, the majority judgment there given by

Mr Justice McHugh where, if I could just give

Your Honours these references, at page 620 lines D

and E, there is discussion of the effect of

non-knowledge of particular matters by the party

against whom the injustice - or by whom the

Baltic 9 9/8/91

injustice is said to have been committed. There is

emphasis at 621D upon the importance of the terms
of the contract itself being fair and reasonable

and if that be so, that really being the end of the

matter; at 621F that the want of wisdom,

particularly with the benefit of hindsight, is not

something that tends against the validity of the

contract under this Act.

If I could ask Your Honours then to go to

page 207 in the application book where

Mr Justice Mahoney made some observations which we

would seek to adopt, simply as a matter of looking

at this release in the context of this Act. The

respondent signed the document of settlement and

release. Mr Justice Mahoney described it, at

page 207 line 8 as:

a simple document with no great complication.

It appears from the evidence as recorded in the

findings of the trial judge at page 20 line 40 that

she read it and thought about it. Again, in the

judgment of the trial judge, that she was aware she

was signing a release and understood that her

solicitor had given advice that the document should

not be signed pending counsel's advice, and that

she was aware that the release which she signed was

extensive enough to cover claims which she may have

had for personal injury against the defendant

arising out of the casualty. Those particular

references, Your Honours, are at page 77 line 16

and page 80 line 25.

Furthermore, Your Honours,

Mr Justice Carruthers did not consider the evidence

justified a finding that she was not reasonably

able to protect her interests due to age or the

state of her physical or mental incapacity.

BRENNAN J:  Mr Sheller, we will call on Mr King.

MR KING:  Can I hand up to the Court a copy of submissions,

together with a small bundle of material in
support, if Your Honours please. Your Honours,
objection is taken to two portions of the affidavit

of Mr James in support which are there referred to.

I then need to pass over from paragraph 2 -

Your Honours, I think the Court copy is here, and

there is one copy missing - Your Honours will omit

paragraph 2, save and accept I would ask

Your Honours to note that - I will come back to it shortly. Your Honours should go to paragraph 3

which deals with the Contracts Review Act issue and

then 4 and 5 which deals with the damages issues.

Baltic 10 9/8/91

I also would seek leave to file in Court an

affidavit of Rodney Edward Withnell sworn

8 August 1991. It is in fact responsive to an

affidavit served upon us two days ago but it raises

the question, and illustrates the point, that the
question of fault having been dealt with as a test
case under the particular Admiralty Rule 61, the
issue or the case of each of the passengers was

then dealt with as a separate and discrete action,

just on the question of public importance, if

Your Honours please.

Can I then go to what the Chief Justice -

MR SHELLER:  Can I just be heard on that, Your Honours, to

say that we certainly object to paragraph 7 of

that, if that is supposed to go to us.

BRENNAN J:  We will come to the affidavit later, if it

becomes material in the course of the argument.

MR SHELLER: If Your Honour pleases.

MR KING:  Your Honours, at page 117 of the application book

the Chief Justice dealt with, in a succinct but I

would respectfully submit a very proper fashion,

the question of the application of the Act. He

took into account, firstly, the general policy that

persons should honour contracts and that litigation

should be resolved if possible by settlement. Then

His Honour referred to the critical questions in

this case and these findings are not open to
challenge - and I will take Your Honours shortly to
decisions in this Court - and are not susceptible
of challenge on appeal in circumstances of this
type.

Firstly, His Honour pointed out that the contract was unjust because of the disparity

~	between the amount of the settlement and the amount
of the claim awarded by the judge. And that was
approximately one-tenth. Secondly, he pointed out
that there was a material inequality of bargaining
power. In this case, that material inequality of
bargaining power brought about by a number of
factors, in particular the evidence contained in
the report of Dr Milton, who was the psychiatrist,
whose evidence the trial judge accepted over the evidence of the psychiatrist called by the
appellant. That evidence appears in the transcript
at page 57.

Also, he took into account the particular

circumstances of Mrs Dillon, namely her physical

and emotional condition as a result of the

stranding and sinking. These were findings made by

the trial judge of a credible witness and,

Baltic 11 9/8/91

accordingly, adopted properly by the trial judge

and the Court of Appeal.

The third factor was, and this is the

important factor, I would respectfully submit, in

the circumstances of the present appeal, His Honour

found:

that the appellant at the least adopted a

course of conduct including denying any

liability, and confronting the respondent with

the prospect of potentially enormous

litigation, which of its nature was likely to,

and did, subject her to a form of pressure
which had the effect, even if not the purpose,
of taking advantage of the inequality of
bargaining power and of her diminished

capacity to protect her own interests.

Now, Your Honours, the appeal papers and the

judgment of Mr Justice Carruthers, in particular,

illustrate the way in which the applicant took

advantage of Mrs Dillon's position in relation to

this matter. Firstly, it. bypassed her solicitor,

who was appointed for a short time to look after

her affairs, by ignoring correspondence and writing

directly to her. She then gave up utilizing her

solicitors, as a result of that, and dealt directly

with the shipping company. Moreover, she was led

to believe, in the correspondence that was sent to

her and the standard form letters that are set out

in the judgments, that what was being offered to

her was her full entitlement. It was only after

she signed the release that she became aware that

that was not the position. In those circumstances, the court quite properly set aside the release that

was signed.

Your Honours, Mr Justice Carruthers dealt in

detail with each of the issues under section 9(2)

of the Contracts Review Act and held, in respect of

each of them, that the consideration was made out
and on that basis set aside the contract.	Can I

hand up to Your Honours the decision in Antonovic v

Volker, a decision of the Court of Appeal, in which

the court held that on an appeal in relation to a

question of fact decided in respect of the strong respect to the decision of the trial judge

on questions of fact - - -

DAWSON J:  The trouble is here that this question of the

release is bound up with the other questions in the

appeal, is it not, as was recognized by the

Chief Justice.

Baltic 12 9/8/91

MR KING:  It is bound up in our favour, Your Honours,

because what happened - if Your Honour is against

my friend in relation to the incorporation of

terms, what Mr Justice Mahoney did was to then take

that into account - that is, taking his own view

that it was incorporated - and make a finding that

as a result, that factor not having been taken into

account by the trial judge, he should come to a

different view to the trial judge. Now, of course,

it depends a little bit on what Your Honours have

decided in relation to the first point raised by my friend, but if, as I would respectfully submit, the

proposition that there were really two contracts of

carriage - two contracts in relation to the

question of incorporation as held by His Honour

Mr Justice Mahoney is just wrong, as we would

submit is the case, he then took that into account

in determining whether the Contracts Review Act

should apply, Your Honours would reject that

of the Chief Justice and the President who proceeded along the lines that the terms were not incorporated.

analysis of an application of the Act and

As pointed out in the submissions, His Honour

Mr Justice Mahoney, at page 205 line 10, took into

account in refusing an order his own finding in

relation to incorporation and held that the

plaintiff's right of recovery was, in any event,

limited. But, Your Honours, that proceeds upon a
misapprehension, with respect to His Honour,

because, as pointed out in our submissions at

point (d) on the previous page, towards the end, in

fact the Athens Convention limitation had no

effective application ih relation to this case in

respect of the personal injuries claim because, in

Australian dollars at that time, 46,666 units of

special account and its equivalent in SDRs gave

rise to a figure which was in excess of the amount

awarded by the trial judge.

Now, in those circumstances, His Honour

Mr Justice Mahoney, with respect, at that finding

at page 205 line 10 misapprehended, with respect to

His Honour, the consideration that he was taking

into account. His Honour's process of reasoning

appears to have been that, firstly, the

susceptibility referred to by His Honour

Mr Justice Carruthers, and as proven from the

evidence of Dr Manzie and Dr Milton, was really

nothing more than "personal upset", to use his own

phrase at page 207. Secondly, he said but taking

into account the further consideration that there

was an incorporation of terms, and further that

that incorporation meant that the plaintiff's right

of recovery was limited, then he should not apply

Baltic 13 9/8/91

the Act. But those two factors, with respect, were

wrongly taken into account and the appropriate

approach was that taken by the Chief Justice and by

the President who essentially, in a more detailed

judgment and a more detailed consideration of the

facts, took the same course.

Your Honours, in the case of West v AGC,

Your Honours dismissed an application for leave to

appeal on the basis that it was really a question

of fact.	And that is this case as well, I would
respectfully submit to you.	We have here many

passengers, each of whom will have different

claims, different fact circumstances. The way in

which the Court will approach, in each particular

case, the application of the Act will obviously

differ. There is no common question of principle.

There is no question of public importance that was

not aired in West v AGC in the judgment of

His Honour Mr Justice McHugh. Each of the judges

in this case applied His Honour Mr Justice McHugh's

judgment. There is nothing shown, even on my

friend's own submissions, which takes it out of the

ordinary Contracts Review Act case and, of course,

His Honour Mr Justice McHugh's judgment has been

followed in a series of decisions in the New South

Wales courts.

Accordingly, it would be my respectful

submission that on that issue the Court should

refuse leave for the reasons that I have outlined.

Your Honours, the further point that I would

respectfully wish to make is that this case is a

case on its own facts. It is emphasized by a

consideration of rule 61 which I have handed up to

Your Honours a short while ago.

The judge may order several actions to be

tried at the same time, and on the same

evidence, or the evidence in one action to be

used as evidence in another, or may order one	of several actions to be tried as a test
action, and the other actions to be advised to
abide the result.

Now, that happened in this case in relation to the

question of fault only and on the sixteenth or
seventeenth day fault was admitted. In respect of

that the appellant was ordered to pay indemnity

costs. Now, Your Honours, on the issue that is

currently before this Court, Mrs Dillon's case for

damages, it is a completely separate and discrete

action. It has no relationship to the actions of

the other passengers. That appears from the orders

made by His Honour Mr Justice Carruthers and the

orders made by the Court of Appeal. It is for that

Baltic 14 9/8/91

additional reason that I would respectfully submit

there is no issue of public importance and no issue
of principle which will be of assistance to the
administration of the law under this Act or in

respect to the balance of the cases.

In addition, I would ask you to take into

account this point. There has been in this case,
as His Honour Mr Justice Gleeson recognized at

page 112, "a protracted and hard-fought battle" between these two parties and what concerns the

respondent in this case is that there are a large
number of passengers who are not abiding the result
of.the present appeal but are awaiting it, and

His Honour Mr Justice Carruthers, as a result of

stay applications, has given directions in that

regard. We would respectfully submit, as a matter

of discretion, that unless Your Honours were

satisfied that there was a strong case for leave to

appeal in relation to this first case, that

Your Honours would not grant that leave. The

evidence in support of that is set out in the

affidavit which I have just handed up.

If Your Honours are prepared to grant leave,

we would ask you to do so on terms that the

appellant put up a security or, alternatively, give

us leave to file a motion for security in relation

to that leave.

BRENNAN J: Security for your costs of the appeal or

security more generally than that?

MR KING:  Security more generally, as is often given in

Admiralty cases. Your Honours, I should now turn

to the two issues of principle in relation to

quantum, namely full restitution of the fare and

damages for disappointment and distress, but I am

not sure whether you wish me to deal with those or

whether you wish Mr Sheller to deal with those

first.

BRENNAN J:	I think it would be just as convenient if you were to deal with those, Mr King.
MR KING:	Your Honours, on the question of restitution of

fare, I would respectfully submit that the

principle set out in the judgment of

Sir George Jessel, that if a man engages to carry a

box of cigars from London to Birmingham, it is an

entire contract, he cannot throw the cigars out of

the carriage half-way there and ask for half the

money; or if a shoemaker agrees to make a pair of

shoes, he cannot offer you one shoe and ask you to

pay one-half of the price, is completely applicable

to this case.

Baltic 15 9/8/91

DAWSON J: It is a short point, is it not? The other side

is that she contracted for 14 days of pleasure and

she only got whatever it was.

MR KING:  It was a contract to get from Sydney to New

Zealand and back again and we ended up on the

bottom of Gore Bay.

DAWSON J: But it was a pleasure cruise, that is the- - -

MR KING:  That is the short point and we would respectfully

submit that the principles were properly applied by

the trial judge and by the Court of Appeal in the

carefully considered judgment of the President and

there is nothing of any public importance arises.

Likewise, on the question of damages for

disappointment. It is just too late to suggest, or

submit, as was put in this case, that Jackson v

Horizon Holidays and Jarvis v Swan Tours are wrong and should be overturned. In four common law

jurisdictions, the United Kingdom, the United

States, New Zealand and Canada, appellate courts

and trial judges have applied those decisions since

1973 and, indeed, in this Court, as is contained in

the material I have just handed up to Your Honours,

in the case of Trident Insurance v McNiece,

His Honour the Chief Justice and Mr Justice Wilson

referred favourably to Jackson v Horizon Holidays,

indeed, as Your Honour Mr Justice Dawson would

recall, because Your Honour also referred to the

case but Your Honour was dissenting in that case,

the Chief Justice and Mr Justice Wilson relied upon

Jackson v Horizon Holidays as the basis for their

reasoning that the third party could recover under

the contract. And we would respectfully submit
they would not have done that if they thought

Jackson v Horizon Holidays was wrong.

Therefore, I would respectfully submit I can

go so far as to put that this Court has approved

Jackson v Horizon Holidays. So I would

respectfully submit there is nothing in that point

either, and that is the end of the appeal.

Your Honours, the only other thing that I can

add is the general consideration to which I have

referred, that it should only be in a case where it

is absolutely clear, given the particular

circumstances of the litigation and given rule 61

of the Admiralty Rules, that leave to appeal should

be granted. If the Court pleases.

Your Honours, could I also, before sitting

down, hand up Gronow to which I briefly adverted.

In that decision the Court held that on questions

of discretion, where findings of fact were made in

Baltic 16 9/8/91

relation to statutes, the appellate courts have a

very limited role in reversing findings of fact.

BRENNAN J:  We need not trouble you in reply, Mr Sheller.

The Court is of opinion that this is a case in

which special leave should be granted and it will be granted accordingly. The respondent will have

leave, if leave be necessary, to make an

application for security generally and may make

such representations as may be advised through the

Registrar with respect to the listing of the matter.

MR KING:  Thank you, Your Honour.

MR SHELLER: If Your Honours please.

AT 3.43 PM THE MATTER WAS ADJOURNED SINE DIE

Baltic 17 9/8/91