Burke v Ash Sounds Pty Ltd

Case •

[2018] VSC 771

•

12 December 2018
IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
MAJOR TORTS LIST

S CI 2017 00891

MICHELA JOY BURKE Plaintiff
v  
ASH SOUNDS PTY LTD 
TRADING AS THE FALLS MUSIC AND ARTS FESTIVAL (ABN 67 160 019 152) 		Defendant

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JUDGE:

McDonald J

WHERE HELD:

Melbourne

DATE OF HEARING:

19 November 2018

DATE OF JUDGMENT:

12 December 2018

CASE MAY BE CITED AS:

Burke v Ash Sounds Pty Ltd

MEDIUM NEUTRAL CITATION:

[2018] VSC 771

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DAMAGES – Claim for damages for non-economic loss for injuries caused by defendant’s negligence – Claim for damages for non-economic loss for breach of ss 61(1) and 61(2) of the Australian Consumer Law – Whether damages claim for breach of ss 61(1) and 61(2) of the Australian Consumer Law subject to s 28LE of the Wrongs Act 1958 – Commonwealth Constitution s 109 – Australian Consumer Law (Competition and Consumer Act 2010 (Cth), Schedule 2) ss 61(1), 61(2), 267(4), 275 – Wrongs Act 1958 ss 28LB, 28LC, 28LE, 28LF.

PRACTICE AND PROCEDURE – Application for determination of separate question – Material facts necessary to provide foundation of separate question not pleaded in statement of claim – Separate question did not arise in proceeding – Supreme Court (General Civil Procedure) Rules 2015 r 47.04.

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APPEARANCES:

 Counsel Solicitors
For the plaintiff Mr T Tobin SC with
Mr M Guo 		Maddens Lawyers
For the defendant Mr J Gleeson QC with
Mr M Hooper 		Lander & Rogers

HIS HONOUR:

  1. The current proceeding is a group proceeding commenced by writ filed on 15 March 2017.  The statement of claim annexed to the writ claims damages in respect of a large number of persons who were injured on the evening of 30 December 2016 while attending the Falls Music and Arts Festival at Lorne.  The injuries were allegedly suffered when people at the festival were attempting to exit ‘the Grand Theatre’, one of the venues at which patrons listened to music. 

  1. In her statement of claim, the plaintiff alleges that she suffered injury, loss and damage by reason of the defendant’s breach of duty, which was owed pursuant to contract, s 14B(3) of the Wrongs Act 1958 (‘Wrongs Act’) and at common law (‘breach of duty claims’). By a second amended statement of claim dated 25 October 2018, in addition to the breach of duty claims, the plaintiff claims damages for alleged breach of the guarantees prescribed by s 60 (services will be rendered with due care and skill) and s 61 (services will be fit for purpose/will achieve desired results) of ‘Schedule 2 — The Australian Consumer Law’ to the Competition and Consumer Act 2010 (Cth) (‘ACL’).

  1. In its amended defence dated 15 November 2018, the defendant admits the breach of duty claims and the breaches of ss 60 and 61 of the ACL.  The defendant admits the plaintiff suffered injury, loss and damage by reason of its conduct, but does not admit the extent of such injury, loss and damage.  As a result of the admissions, liability is no longer in issue.  The remaining question for determination concerns the quantum of damages to be awarded to the plaintiff and other group members.

  1. The parties are in agreement that, subject to one qualification discussed below, insofar as the plaintiff and group members claim damages for non-economic loss for negligence, the claim is subject to s 28LE of the Wrongs Act. As such, there is no entitlement to recover damages unless a claimant can establish that they have suffered ‘significant injury’ within the meaning of s 28LF of the Wrongs Act.

  1. The parties disagree as to the application of s 28LE of the Wrongs Act in respect of claims for damages for breach of ss 61(1) and/or 61(2) of the ACL.  The parties agreed upon the wording of two questions for separate determination prior to the hearing of the plaintiff’s claim for damages:

1.Do the provisions of Part VB and VBA of the Wrongs Act 1958 (Vic) apply to the claim against the defendant for damages under s 267 of the Australian Consumer Law (ACL) for non-compliance with the guarantees in s 61(1) or (2) of the ACL, if the services the subject of s 61(1) or (2) were supplied pursuant to a contract between the group member and the defendant?

2.Do the provisions of Parts VB and VBA of the Wrongs Act 1958 (Vic) apply to the claim for damages under s 267 of the ACL for non-compliance with the guarantees in s 61(1) or (2) of the ACL, if the services the subject of s 61(1) or (2) were not supplied pursuant to a contract between the group member and the defendant?

  1. Before addressing these questions it is necessary to set out the relevant provisions of the Wrongs Act and the ACL:

WRONGS ACT 1958

Section 28LC

Application of Part

(1)This Part applies to claims for the recovery of damages for non-economic loss, except claims that are excluded by subsection (2) or (3).

(2)This Part does not apply to the following claims for the recovery of damages for non-economic loss—

(a)a claim where the fault concerned is, or relates to, an intentional act that is done with intent to cause death or injury or that is sexual assault or other sexual misconduct;

…

(4)This Part extends to a claim for damages for non‑economic loss even if the claim is founded on breach of contract or any other cause of action.

…

Section 28LE

Restriction on recovery of damages for non‑economic loss

A person is not entitled to recover damages for non-economic loss in any proceeding in a court in respect of an injury to a person caused by the fault of another person unless the person injured has suffered significant injury.

COMPETITION AND CONSUMER ACT 2010

Schedule 2—The Australian Consumer Law

61       Guarantees as to fitness for a particular purpose etc.

(1)       If:

(a)a person (the supplier) supplies, in trade or commerce, services to a consumer; and

(b)the consumer, expressly or by implication, makes known to the supplier any particular purpose for which the services are being acquired by the consumer;

there is a guarantee that the services, and any product resulting from the services, will be reasonably fit for that purpose.

(2)       If:

(a)a person (the supplier) supplies, in trade or commerce, services to a consumer; and

(b)the consumer makes known, expressly or by implication, to:

(i)        the supplier; or

(ii)a person by whom any prior negotiations or arrangements in relation to the acquisition of the services were conducted or made;

the result that the consumer wishes the services to achieve;

there is a guarantee that the services, and any product resulting from the services, will be of such a nature, and quality, state or condition, that they might reasonably be expected to achieve that result.

…

Subdivision B—Action against suppliers of services

267     Action against suppliers of services

(1)       A consumer may take action under this section if:

(a)a person (the supplier) supplies, in trade or commerce, services to the consumer; and

(b)a guarantee that applies to the supply under Subdivision B of Division 1 of Part 3 2 is not complied with; and

(c)unless the guarantee is the guarantee under section 60—the failure to comply with the guarantee did not occur only because of:

(i)an act, default or omission of, or a representation made by, any person other than the supplier, or an agent or employee of the supplier; or

(ii)a cause independent of human control that occurred after the services were supplied.

…

(4)The consumer may, by action against the supplier, recover damages for any loss or damage suffered by the consumer because of the failure to comply with the guarantee if it was reasonably foreseeable that the consumer would suffer such loss or damage as a result of such a failure.

…

275     Limitation of liability etc.

If:

(a)there is a failure to comply with a guarantee that applies to a supply of services under Subdivision B of Division 1 of Part 3 2; and

(b)the law of a State or a Territory is the proper law of the contract;

that law applies to limit or preclude liability for the failure, and recovery of that liability (if any), in the same way as it applies to limit or preclude liability, and recovery of any liability, for a breach of a term of the contract for the supply of the services.

Question 1

  1. In the first instance, the parties’ submissions in respect of Question 1 focused on whether ‘fault’ is an element of a cause of action alleging a breach of ss 61(1) and 61(2) of the ACL. The plaintiff submitted that ‘fault’ is not an element of the cause of action, with the result that a claimant could recover damages for non-economic loss for a breach of ss 61(1) and 61(2) irrespective of whether the claimant had suffered significant injury within the meaning of 28LF of the Wrongs Act. The plaintiff submitted that s 28LE of the Wrongs Act imposes no restrictions upon a claimant’s right to recover damages for non-economic loss pursuant to s 267(4) of the ACL for a breach of ss 61(1) or 61(2).  The defendant submitted to the contrary. 

  1. During the course of the hearing on 19 November 2018 I raised with the parties the question of whether s 28LE of the Wrongs Act operated to restrict a claimant’s entitlement to damages for breach of ss 61(1) or 61(2) of the ACL irrespective of whether fault is an element of the cause of action for breach of ss 61(1) or 61(2).  Section 28LE is engaged ‘in any proceeding’ in respect of an injury caused by the fault of another person.  The parties were given the opportunity to file written submissions to address the question of whether s 28LE is engaged by reason of the plaintiff’s allegation of negligence, irrespective of whether fault is an element of a cause of action for breach of ss 61(1) or 61(2).

  1. Section 28LE of the Wrongs Act precludes a person from recovering damages for non-economic loss ‘in any proceeding in a court in respect of an injury to a person caused by the fault of another person unless the person injured has suffered significant injury.’ The plaintiff’s second amended statement of claim claims damages for non-economic loss in respect of injuries caused by the defendant’s negligence. That negligence is admitted. Prima facie, the proceeding falls squarely within the terms of s 28LE of the Wrongs Act with the result that a group member cannot recover damages for non-economic loss unless they suffered significant injury.

  1. The defendant submits that, irrespective of whether fault is an element of a claim for breach of ss 61(1) and 61(2) of the ACL, s 28LE of the Wrongs Act operates as an absolute bar to the plaintiff and group members recovering damages for non-economic loss, save in respect of significant injury. I accept this submission. If a proceeding is ‘in respect of an injury to a person caused by the fault of another person’, the proceeding is subject to the operation of s 28LE. The plaintiff claims damages in respect of an injury caused by the fault of the defendant. That claim is pleaded in negligence. It is unnecessary for me to express a concluded view in respect of the submission of Mr Gleeson QC that, irrespective of whether there had been a claim in negligence specifically alleging fault on the part of the defendant, s 28LE of the Wrongs Act could be engaged.[1] In the present proceeding, there is a specific allegation of fault and s 28LE of the Wrongs Act is thereby engaged in respect of the entire proceeding, including the claims alleging breach of s 61 of the ACL.

    [1]Transcript of proceedings (19 November 2018) 50.5–50.20.

  1. Mr Guo, who appeared with Mr Tobin SC on behalf of the plaintiff, submits that s 28LE of the Wrongs Act should be read as:

(a)       precluding the recovery of damages for non-economic loss in any proceeding;

(b)the damages being in respect of an injury that is caused by the fault of another person;

(c)       unless the person injured has suffered a significant injury.

  1. Mr Guo submits that, if there is an injury that is caused by the fault of another person, then damages for non-economic loss in respect of that injury so caused cannot be recovered in the proceeding unless there is significant injury.  However, if there is an injury that is not caused by the fault of another person, then damages in respect of that pairing of injury and causation can be recovered in the proceeding, regardless of whether that injury is a significant injury.  I reject this submission.

  1. The task of statutory construction begins with consideration of the text itself.  The language which has actually been employed in the text of legislation is the surest guide to legislative intention.[2] The phrase ‘proceeding in a court’ has a plain meaning. In reference to the definition of ‘proceeding’ in s 3 of the Supreme Court Act 1986, Tadgell JA stated that a proceeding is the ‘vehicle by which the jurisdiction of the court is invoked and not the subject matter of a justiciable dispute.’[3]  Thus, there is a clear distinction between the proceeding and the claims made in the proceeding.

    [2]Treasurer of Victoria v Tabcorp Holdings Ltd [2014] VSCA 143, [1]−[2], [99]−[102].

    [3]Braeside Bearings Pty Ltd v HJ Brignell & Associates (Boronia) [1996] 1 VR 17, 20.

  1. In Melbourne Stadiums Ltd v Sautner the Full Court of the Federal Court stated:

The word “proceeding” is not defined in the Fair Work Act. In the context of s 570 it bears a different meaning from the word “matter”. “Matters”, in the sense of claims or causes of action or their underlying controversies, are raised in the “proceeding” or “proceedings” which is or are prosecuted in the court. … As Gray J said in Geneff v Peterson (1986) 19 IR 40 at 90, in dealing with the construction of s 197A of the Conciliation and Arbitration Act 1904 (Cth) (a predecessor of s 570):

[T]he section operates in relation to a ‘proceeding’. There is only one proceeding before the Court, although that proceeding involves a number of separate claims, each of which might have been the subject of a separate proceeding … In my view, it is impossible to split the claims within a proceeding for the purpose of the application of s 197A.[4]

[4](2015) 317 ALR 665, 696 [156] (citations omitted).

  1. Although arising in a different statutory context, the Full Court of the Federal Court’s reasoning is apposite to the meaning of ‘proceeding’ in s 28LE of the Wrongs Act; in particular, the reasoning that there is one proceeding before the Court that involves a number of separate claims. The current proceeding involves a claim in negligence which plainly does entail an allegation of fault. It also includes an allegation of breach of s 61 of the ACL, which arguably does not involve an allegation of fault.  Nevertheless, the proceeding is plainly one in respect of an injury suffered by a person caused by the fault of another person.

  1. The construction of s 28LE of the Wrongs Act contended for by the plaintiff is inconsistent with the plain meaning of s 28LE which precludes an entitlement to damages ‘in any proceeding’ absent significant injury.  The use of the phrase ‘in any proceeding’ is unambiguous, and can be intelligibly applied to the circumstances of a plaintiff making a claim to recover damages for non-economic loss in respect of an injury caused by the fault of another person.

  1. The construction contended for by the plaintiff requires the phrase ‘in respect of a claim’ to be read into s 28LE of the Wrongs Act immediately before the phrase ‘in any proceeding’.

  1. The conditions for reading words into a statute were stated by McHugh JA in Bermingham v Corrective Services Commission of New South Wales.[5] Referring to the judgment of Lord Diplock in Wentworth Securities Ltd v Jones,[6] McHugh JA said:

Once the court concludes that the grammatical meaning does not accord with the purpose of the legislation, “... it is often legitimate, because it is necessary, to put a strained interpretation upon some words which have been inadvertently used”: Sutherland Publishing Co Ltd v Caxton Publishing Co Ltd [1938] Ch 174 at 201. But as the cases to which I referred (at 422-423) in Kingston v Keprose Pty Ltd show, it is not only when Parliament has used words inadvertently that a court is entitled to give legislation a strained construction. To give effect to the purpose of the legislation, a court may read words into a legislative provision if by inadvertence Parliament has failed to deal with an eventuality required to be dealt with if the purpose of the Act is to be achieved.

In Tokyo Mart Pty Ltd v Campbell (1988) 15 NSWLR 275 this Court applied the principles formulated by Lord Diplock in Wentworth Securities Ltd v Jones [1980] AC 74 at 105-106 concerning the circumstances in which a court may read words into a legislative provision to give effect to its purpose. Lord Diplock said that a court may read words into a statutory provision when three conditions are fulfilled. First, the court must know the mischief with which the Act was dealing. Secondly, the court must be satisfied that by inadvertence Parliament has overlooked an eventuality which must be dealt with if the purpose of the Act is to be achieved. Thirdly, the court must be able to state with certainty what words Parliament would have used to overcome the omission if its attention had been drawn to the defect.[7]

[5](1988) 15 NSWLR 292 (‘Bermingham’).

[6][1980] AC 74.

[7](1988) 15 NSWLR 292, 302 (emphasis added).

  1. In Director of Public Prosecutions v Leys,[8] the Victorian Court of Appeal applied the three conditions set out in Bermingham.[9] To those, they added a fourth requirement that the modified construction must be reasonably open, and not be unnatural, incongruous or unreasonable, and must be consistent with the statutory scheme.[10] The Court of Appeal also referred to the judgment of McHugh JA in Kingston v Keprose Pty Ltd,[11] which clarified that the second of Lord Diplock’s conditions extends to those circumstances where words have been inadvertently used or omitted, where the statute proceeds on a mistaken assumption, where the purpose of a provision indicates that Parliament did not intend the grammatical meaning to apply, or where words must be omitted to avoid absurdity.[12]

    [8](2012) 44 VR 1.

    [9]Ibid 38 [109].

    [10]Ibid.

    [11](1987) 11 NSWLR 404.

    [12]Director of Public Prosecutions v Leys (2012) 44 VR 1, 19 [55].

  1. In Taylor v The Owners – Strata Plan No 11564,[13] the majority, comprising French CJ, Crennan and Bell JJ, supported the conclusion in Leys that purposive construction allows for adding words that expand the provision’s field of operation. Their Honours stated:

Consistently with this Court’s rejection of the adoption of rigid rules in statutory construction, it should not be accepted that purposive construction may never allow of reading a provision as if it contained additional words (or omitted words) with the effect of expanding its field of operation. As the review of the authorities in Leys demonstrates, it is possible to point to decisions in which courts have adopted a purposive construction having that effect. And as their Honours observed by reference to the legislation considered in Carr v Western Australia, the question of whether a construction “reads up”’ a provision, giving it an extended operation, or “reads down” a provision, confining its operation, may be moot.

The question whether the court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgment of matters of degree. That judgment is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision. It is answered against a construction that fills “gaps disclosed in legislation” or makes an insertion which is “too big, or too much at variance with the language in fact used by the legislature”. 

Lord Diplock’s three conditions (as reformulated in Inco Europe Ltd v First Choice Distribution) accord with the statements of principle in Cooper Brookes and McColl JA was right to consider that satisfaction of each could be treated as a prerequisite to reading s 12(2) as if it contained additional words before her Honour required satisfaction of a fourth condition of consistency with the wording of the provision. However, it is unnecessary to decide whether Lord Diplock’s three conditions are always, or even usually, necessary and sufficient. This is because the task remains the construction of the words the legislature has enacted. In this respect it may not be sufficient that “the modified construction is reasonably open having regard to the statutory scheme” because any modified meaning must be consistent with the language in fact used by the legislature. Lord Diplock never suggested otherwise. Sometimes, as McHugh J observed in Newcastle City Council v GIO General Ltd, the language of a provision will not admit of a remedial construction. Relevant for present purposes was his Honour’s further observation, “[i]f the legislature uses language which covers only one state of affairs, a court cannot legitimately construe the words of the section in a tortured and unrealistic manner to cover another set of circumstances”.[14]  

[13](2014) 253 CLR 531.

[14]Ibid 548 [37] – 549 [39] (citations omitted, emphasis added).

  1. Gageler and Keane JJ, dissenting, stated:

Statutory construction involves attribution of legal meaning to statutory text, read in context. “Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning ... But not always”. Context sometimes favours an ungrammatical legal meaning. Ungrammatical legal meaning sometimes involves reading statutory text as containing implicit words. Implicit words are sometimes words of limitation. They are sometimes words of extension. But they are always words of explanation. The constructional task remains throughout to expound the meaning of the statutory text, not to divine unexpressed legislative intention or to remedy perceived legislative inattention. Construction is not speculation, and it is not repair.[15]

[15]Ibid 556–557 [65] (citations omitted, emphasis added).

  1. Consistent with the principles set out above, there is no legitimate basis for construing s 28LE of the Wrongs Act by reading the phrase ‘in respect of a claim’ into s 28LE.  To do so would result in a modified meaning of s 28LE which is too much at variance with the language in fact used by the legislature.

  1. I reject the plaintiff’s contention that the context of s 28LE of the Wrongs Act favours a construction whereby:

(a)The plaintiff can claim damages for non-economic loss in respect of an injury, not being a significant injury, which is not caused by the fault of another; and

(b)The plaintiff can also claim damages for non-economic loss in respect of an injury caused by the fault of another person, which is limited by the requirement that the injury be a significant injury.

  1. It would have been a very simple matter for the legislature to have inserted the phrase ‘in respect of a claim’ in s 28LE of the Wrongs Act. ‘Claim/s’ appears 11 times in s 28LC and has a particular definition derived from the word ‘claimant’ in s 28LB. The failure to include any reference to ‘claim’ in s 28LE is consistent with a legislative intent that, if the proceeding is in respect of an injury to a person caused by the fault of another person, the restriction under s 28LE on recovery of damages for non-economic loss applies generally in the proceeding, including in respect of claims for non-economic loss which are not caused by the fault of another person.

  1. The restriction on the right to recover damages under s 28LE of the Wrongs Act is subject to s 28LC(2), which prescribes five categories of claims in respect of which s 28LE does not apply. The plaintiff contends that a construction whereby s 28LE applies to the entire proceeding ‘introduces absurdities’. The plaintiff posits the example of a bouncer who assaults a patron, with the result that the bouncer is sued for assault, and the hotel is sued for negligence based on insufficient care in the selection, training and supervision of the bouncer. The plaintiff contends that the exemption to the significant injury threshold for intentional acts intended to cause injury would not apply if the claim in negligence against the hotel was brought in the same proceeding, thereby barring recovery. I reject this submission.

  1. Section 28LC(2)(a) of the Wrongs Act provides that s 28LE does not apply to a claim for damages for non-economic loss ‘where the fault concerned is, or relates to’ an intentional act done with intent to cause injury. Section 28LC(2)(a) would therefore be enlivened in the example posited by the plaintiff, where the assault is an intentional act intended to cause injury. That claim would be exempt from the operation of s 28LE, even if brought in the same proceeding as the claim in negligence against the hotel, which is otherwise subject to s 28LE. For the same reason, the plaintiff’s submission that Anshun estoppel would require the plaintiff to give up their clear right to damages against the bouncer by pursuing the hotelier does not arise.

  1. Mr Guo sought to place some reliance upon the judgment of Keogh J in Di Falco v Emirates.[16] The plaintiff alleged that she fell and injured her right ankle while travelling on an Emirates flight from Melbourne to Dubai. The plaintiff’s sole cause of action was based upon ss 9B and 9E of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) (‘Carriers’ Act’). As to the question of whether the plaintiff’s claim was subject to s 28LE of the Wrongs Act, Keogh J stated:

The difficulty for the defendant is that s 28LE relates to claims for non-economic loss damages made “in any proceeding… in respect of an injury to a person caused by the fault of another person…”.  In this proceeding the plaintiff makes no allegation that the injury was caused by the fault of the defendant.  Fault is not an element of the cause of action the plaintiff is pursuing and accordingly, s 28LE is not applicable to the plaintiff’s case.[17]

[16][2018] VSC 472.

[17]Ibid [25] (citations omitted, emphasis in original).

  1. At face value, the final sentence of the passage set out above lends some weight to the plaintiff’s contention that the application of s 28LE of the Wrongs Act is contingent upon fault being an element of a discrete cause of action relied upon.  However, Keogh J’s observations must be read in the context of a plaintiff’s claim where the only cause of action relied upon by the plaintiff was the claim under the Carriers’ Act. As such, for the purposes of whether s 28LE applied, the Carriers’ Act claim was synonymous with ‘the proceeding’.  As fault was not an element of the Carriers’ Act cause of action, the proceeding was not in respect of an injury to a person caused by the fault of another person. 

  1. Question 1 is answered in the affirmative.  The provisions of Pts VB and VBA of the Wrongs Act apply to a claim against the defendant for damages under s 267(4) of the ACL for non-compliance with the guarantees in ss 61(1) or 61(2), if the services the subject of ss 61(1) or 61(2) were supplied pursuant to a contract between the group member and the defendant.

  1. An affirmative answer to Question 1 renders it unnecessary to address the plaintiff’s contention that s 28LE of the Wrongs Act has no application to a claim for damages under s 267(4) of the ACL for non-economic loss for breach of ss 61(1) or 61(2), as fault is not an element of a cause of action for breach of ss 61(1) or 61(2).  Nevertheless, for the sake of completeness I shall address this submission.

  1. The plaintiff’s claim alleging a breach of ss 61(1) and 61(2) of the ACL is pleaded at paragraphs 14D, 14E, 14G and 14H:

14D.The plaintiff and group members each made known to the defendant that the Festival services were being acquired by them for entertainment and leisure, and for the result of receiving entertainment, in each case without being injured or subject to risk of injury by reason of the state of the premises or things done or omitted to be done by the defendant on the premises and in the conduct of the Festival.

PARTICULARS

The knowledge is to be implied from the defendant’s promotion of the Festival and by the proper construction of the contract.

14E.The defendant guaranteed that the Festival services would be reasonably fit for the purpose and result set out in paragraph 14D (“guarantee as to fitness for purpose”).

PARTICULARS

The guarantee arose by reason of subsections 61(1) and (2) of the ACL.

…

14G.    The defendant contravened the guarantee as to fitness for purpose.

PARTICULARS

The way in which the defendant proposed to provide the services was that set out in the particulars to paragraph 13. Such conduct meant that the services were not reasonably fit for the purpose, nor could be reasonably expected to achieve the result, set out in paragraph 14D.

14H.The loss or damage suffered by the plaintiff and each of the group members was because of the conduct of the defendant.

PARTICULARS

The loss or damage of the plaintiff is that set out in the particulars to paragraph 14. Particulars of the loss or damage of the group members will be provided after the trial of the plaintiff’s claim.

  1. Paragraph 14H alleges that the loss or damage suffered by the plaintiff and each of the group members ‘was because of the conduct of the defendant.’  The conduct of the defendant is as per the particulars to paragraph 13 of breach of duty.

  1. The particulars to paragraph 13 are as follows:

PARTICULARS OF BREACH OF DUTY

(a)       Failing to ensure that the Theatre had an adequate means of safe exit;

(b)Restricting the area of exit from the Theatre in a manner which caused crushing of persons attempting to do so;

(c)Scheduling events at the Festival and in particular around the time of the incident so that large numbers of people would be moving quickly between venues and failing to accommodate such movement;

(d)Failing to have systems in place to ensure that there would be safe movement between venues at about the time of the incident;

(e)Failing to have any or any adequate surfacing placed at the exit of the Theatre so as to ensure safe passage of those exiting from the Theatre;

(f)Failing to have any or any adequate marshalling of patrons at the conclusion of the events at about the time of the incident;

(g)Failing to provide any or any adequate instruction to patrons as to their movement at about the time of the incident;

(h)Failing to undertake any or any adequate risk assessment in respect of the movement of patrons from the Theatre about the time of the incident and to accommodate the risks associated therewith;

(i)Adopting a different style of marquee for the Theatre as compared to previous years without undertaking any or any adequate risk analysis in respect of the alterations thereof and the effect thereof upon the movement of patrons.

  1. The conduct of the defendant relied upon as contravening ss 61(1) and 61(2) is the same conduct constituting a breach of duty owed to the plaintiff in contract, pursuant to s 14B(3) of the Wrongs Act and at common law.

  1. Mr Guo submitted that the plaintiff’s claim for damages for non-economic loss for contravention of ss 61(1) and 61(2) of the ACL was not a claim ‘in respect of an injury to a person caused by the fault of another person.’  Rather, he submitted:

What is caused under section 61 is the result not being what the purchaser or the consumer intended. That’s what’s relevantly caused. Fault doesn’t enter into that equation.[18]

[18]Transcript of proceedings (19 November 2018) 30.21–30.24.

  1. Mr Guo’s submission that ‘fault doesn’t enter into that equation’ cannot be reconciled with the basis upon which the plaintiff alleges a contravention of ss 61(1) and 61(2) of the ACL. The entitlement to damages under s 267(4) is contingent upon a ‘failure to comply with the guarantee’. As pleaded in paragraph 14H, the loss or damage suffered by the plaintiff and each group member ‘was because of the conduct of the defendant.’ The conduct as particularised in paragraph 13 is replete with language attributing fault to the defendant. The word ‘failing’ appears on six separate occasions. The defendant’s failure to comply with ss 61(1) and 61(2) of the ACL was because of the defendant having been at fault.

  1. While it is conceivable that a plaintiff could plead a breach of ss 61(1) and 61(2) of the ACL in a way which does not allege fault on the part of the defendant, the plaintiff’s pleading alleging a contravention of ss 61(1) and 61(2) is based upon an allegation of the defendant having been at fault. Therefore, if, contrary to my primary conclusion, I accepted the plaintiff’s submission that the application of s 28LE of the Wrongs Act is contingent upon fault being an element of a discrete cause of action, I would have concluded that the plaintiff’s right to recover damages for non-economic loss for breach of ss 61(1) and 61(2) of the ACL is subject to s 28LE of the Wrongs Act.

Question 2

  1. The plaintiff submits that, if Question 1 is answered in the affirmative:

All claimants would be precluded from damages for non-economic loss, regardless of whether the purpose and guarantee claims require proof of fault, and regardless of the existence and nature of any contract, because of s 28LE’s long-arm operation.[19]

[19]Plaintiff, ‘Plaintiff’s submissions on Wrongs Act 1958, section 28LE and Australian Consumer Law (Cth), section 267’, 21 November 2018 [25].

  1. I reject this submission. Section 267(4) of the ACL confers an unqualified right of action upon a consumer to claim damages against the supplier of services because of failure to comply with the guarantees prescribed by ss 61(1) or 61(2) if loss or damage was reasonably foreseeable. Where the services are provided pursuant to a contract between the consumer and the supplier of the services, no inconsistency arises between s 267(4) of the ACL and s 28LE of the Wrongs Act. This is because s 275 of the ACL expressly provides that, if the law of a State is the proper law of the contract, that law applies to limit liability in the same way as it applies to a breach of the contract for the supply of services. However, absent the application of any limitation of liability under State law pursuant to s 275 of the ACL, s 28LE of the Wrongs Act could not limit the right of a consumer to claim damages for non-economic loss for breach of ss 61(1) or 61(2). To the extent that s 28LE of the Wrongs Act did purport to have this effect, it would be inconsistent with s 267(4) of the ACL and invalid by reason of s 109 of the Commonwealth Constitution.[20]

    [20]Wallis v Downard Pickford (North Qld)Pty Ltd (1994) 179 CLR 388, 396–397.

  1. It does not follow from an affirmative answer to Question 1 that s 28LE of the Wrongs Act limits liability for damages for non-economic loss claimed pursuant to s 267(4) of the ACL, irrespective of whether the services are supplied pursuant to a contract between a group member and the defendant. Section 28LE of the Wrongs Act limits the entitlement to claim damages for non-economic loss if the criteria prescribed by s 275 of the ACL are met:

(a)       there is a failure to comply with a guarantee that applies to a supply of services under Subdivision B of Division 1 of Part 3−2 (which includes s 61); and

(b)      the law of the State (relevantly, Victoria) is the proper law of the contract.

  1. Section 275 of the ACL presupposes the supply of services pursuant to a contract. However, must the contracting parties be the supplier and the consumer of services? What of a situation where a group member attended the Falls Festival having been gifted a ticket purchased by a third party? Prima facie, in such circumstances, there would not be a contract between the group member and the defendant. However, the group member would nevertheless be a consumer of services within the meaning of s 61(1) of the ACL.

  1. Where a third party purchased a ticket to the Falls Festival and gifted that ticket to a group member there would be a contract governing the purchase of the ticket as between the third party and the defendant. Arguably the existence of that contract would enliven the operation of s 275 of the ACL, albeit that the purchaser of the ticket is not the consumer of the services provided by the defendant for the purposes of s 61. Ultimately, it is not necessary to resolve this question. I have concluded that there is not an adequate foundation for the resolution of the issues raised by Question 2.

  1. Paragraph 9 of the second amended statement of claim pleads:

The plaintiff and group members each by reason of purchase of a ticket to attend the festival and in exchange of that ticket for a wristband at the Festival had contracted with the defendant to attend the Festival (”the contract”).

This allegation is admitted in the amended defence.  Mr Gleeson submitted that, based upon the defendant’s admission that the plaintiff and group members had purchased a ticket, there is no foundation for Question 2.  Mr Guo submitted that paragraph 14A of the second amended statement of claim provides a legitimate foundation for Question 2.  Paragraph 14A is as follows:

Further or in the alternative to paragraphs 9 to 14, in respect of the plaintiff and the group members, the defendant was:

(a)       engaging in trade or commerce; and

(b)supplying services within the meaning of the Australian Consumer Law (“ACL”) to the plaintiff and the group members (“Festival services”).

  1. Paragraph 14A is pleaded in the alternative to paragraphs 9 to 14. However, there is no pleading in paragraph 14A, or elsewhere, that the services the subject of the guarantees in ss 61(1) or 61(2) were not supplied pursuant to a contract between the group member and the defendant. The second amended statement of claim does not plead the material facts relied upon in support of the proposition that services were not supplied pursuant to a contract between a group member and the defendant. As such, Question 2 does not arise in ‘the proceeding’ within the meaning of rule 47.04 of the Supreme Court (General Civil Procedure) Rules 2015.[21]

    [21]Kelton v Evergreen Pastoral Improvement Services Pty Ltd (Unreported, Supreme Court of Victoria, Court of Appeal, Phillips, Charles and Callaway JJA, 26 October 1995) 6–7. See also Rocklea Spinning Mills Pty Ltd v Anti-Dumping Authority (1995) 56 FCR 406, 423.

Conclusion

  1. I shall make an order pursuant to rule 47.04 that the Court is to determine the following question in this proceeding:

Do the provisions of Pts VB and VBA of the Wrongs Act apply to the claim against the defendant for damages under s 267 of the ACL for non-compliance with the guarantees in ss 61(1) or 61(2) of the ACL, if the services the subject of ss 61(1) or 61(2) were supplied pursuant to a contract between the group member and the defendant?

I shall order that the question be answered in the affirmative.  I shall not make an order for the separate determination of Question 2 because, on the current state of the pleadings, the question is not raised in the proceeding.  I shall provide the parties with an opportunity to make submissions on the question of the costs of and incidental to the hearing on 19 November 2018.

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