Doolan, Barry John v Air New Zealand Ltd

[1978] FCA 72

I?J3W SOUTH VALES DISTRICT REGISTRY j	-Nos. 105-108 of 1977
GENEWL DIVISION

BZTV!EE:N: EARRY JObN DOOLAM

Informant

-	AND:	A I R NET;/ ZEALAND LI!lTTZD
AND P.NOTHFR

Defendants

RFASCNS FOR JUDGlI3:MT: FRAVKI J.

DZLIVERED: 8 August 1978

In th i s ma t t e r t he in fo rman t , Mr. Doolan, has brought

proceedings by four informat ions aga ins t the defendants ,

Air New Zealand Limited and Je-cset Tours Pty. L'imited, under

s.79 of the Trade Pract ices Act 19'74 a l l e g i n g a cont ravent ion

I

of s .53(c) of t h a t Act.

Each proceeding ar ises out of 2 tour descr ibed as an

I"l8-day ,Fully Escorted West Coast U.S.A. and Honolulu Holiday"

i n respect of lrhlch the second defendant was what is c a l l e d

the l l t ou r and t h e f irst defendant was t h e c a r r l e r

on t h e l as t s t age o f t he ho l iday which , accord ing to the

i t i n e r a r y , was t o be by an A i r New Zealand f l l g h t due t o leave

Honolulu a t l a.m. on Friday, 1 4 January ?977 f o r Auckland

and thence to Sydney

When the tou r depa r t ed frorn Sydney on 29 December

1976, l 3 2 passcngcrs were cn tile Lour but only 77 of t hese

had what 1s called. ltconflrmed booklngsll from FIonoIulu t o

Sydney v i a Auclrlalld and 55 were s t i l l 9 :a i t - l i s ted" f o r t h a t

p a r t of the t o u r . W a i t - l i s t e d " i s a term used i n conncction

! Gfcf-lc

I

' I - 2 -

8 .

with bookings on a i r l i n e s t o d e s c r i b e a passenge r fo r whom

no confirmed booking is he ld bu t who i s awai t ing a s e a t

becoming a v a i l a b l e on the p l ane in ques t ion .

This was st i l l the pos i t ion on 12 January 1977 when

arrangehients were made t o t r a n s p o r t 55 t o u r p a r t i c i p a n t s who

were l lwait-l istedll by a Qantas f l i g h t due to leave Honolu lu

a t 1.15 a.m. -the next morning, 13 January 1977, f o r F i j i .

Because o f c e r t a i n American r egu la t ions it was n o t

poss ib le to endeavour to a l low passengers some choice, but it

was n e c e s s a r y t o s e l e c t a p a r t i c u l a r 55 of the 132 passengers

t c dcpzrt c-oday e s r l j r from I I ~ n o l u l i i by t h e Qailtas Zi igi l t .

Those passengers spent four hours a t Nandi where they were

well looked af ter and a l l reasonable fac i l i t l es were provided

for them, including rooms a t a first class h o t e l . A t 5.15 p.m.

they a r r ived i n Auckland where they were accomnodated overnight

a t a first c l a s s h o t e l and provided with d inner and breakfas t

the next day . Af te r breakfas t they jo ined the res t o f the tour

p a r t i c i p a n t s for t h e f l i g h t t o Sydney.

The problem of transportation from Honolulu to Sydney

I

apparent ly arose because, as was t h e p r a c t i c e , many months

be fo re the tou r was t o t a k e p l a c e s e a t s from Honolulu f o r

proposed tour par t lc ipants had been ' lwai t - l ls tedl l but of

those l lwai t - l l s ted" 55 had not been confirmed €or t h e f l i g h t

from Honolulu t o Sydney before the tour departed from Sydney.

A l l proceedings arose out of the sane incident and each

information was i ssued In respec t of a d i f f e r e n t t o u r p a r t l c i p a n t

whose i t i n e r a r y had been a l t e r e d i n t h e manner I have s e t o u t .

The de€endants pleaded g u i l t y m each case and it was

said t h a t t h e t i c k e t s had been writ ten on 6 December 1976

in respect of the tour and they had been marked l l O . K . I 1 f o r t h e

f l i g h t from Honolulu. This meant that a con€irmed s e a t was

I

, _

i - 3 -

: '

avai lable on the plane. It was said by t h e d e f e n d a n t s t h a t

this wrong no ta t lon "0.K. was due t o a misunderstanding

between them. No sworn evidence was pu t be fo re me as t o

the nature of the misunderstanding o r how it arose . It is

not suggested by t h e i n f o r m a o t t h a t t h i s c a s e was one o f

deliberake over-booking but it was a c c e p t e d t h a t it aros?

from'a mistake due to carelessness and not d i shones ty . The

informarit suggested t ha t the mistake could have been discovered

and r e c t i f i e d b e 1 o r e l t o u r t h e f t Sydney. -

It was said on behal f o f the first d e f e n d a n t t h a t t h l s

was the only t ime tha t such an incident had occurred during

the t ime when t h e second defendant had been providing tours ,

u s ing the first d e f e n d a n t ' s a i r c r a f t , and tha t a number of

t h e s e t o u r s had been previously organised.

I am no t p repa red to pay qu i t e t he same r e g a r d t o a n

explanation based upon an alleged misunderstanding without

any rnater ja l befcre me as t o how the misunderstanding arose,

o r what e f f o r t s a defendant had made t o p r e v e n t It occurr ing

o r indeed to cor rec t it once it had occurred, as I might i f ,

a f t e r cons ide ra t ion o f sworn evidence dealing wlth the ma t t e r ,

I came to the conc lus lon tha t a defendant was s u b s t a n t i a l l y

blameless i n o the r t han a technica i sense .

. .

It seems t o me the defendants went to considerable

trouble and, presumably, expense to make the necessa ry

a l t e r a t i c n s t o t h e itinerary .. as p leasan t as they reasonably

could f o r t h e u n f o r t u n a t e p a r t l c i p a n t s whose I t i n e r a r y had

I . .

been changed.

I am not asked t o make any anci l lary order under s.87

of the Tradc P I T C L L - ~ * ~ , -. . ;?ct and indcod 1 t is p o s s i b l e t h a t

- 4 -

some o f t he pe r sons a f f ec t ed p re fe r r ed the changed

i t i n e r a r y . I cons ide r t he s t a t emen t o f Lord Widgery

i n Becltett v. Cohen p9727 - l W.L.R. 1593 a t p.1596 i n

r e l a t i o n t o t h e U n i t z d Kingdom Trade Descrlptions Act

1968, tha t Par l iament never in tended or contemplated tha t

t h e Act should be used to make a criminal of fence o g t

o€ what is r e a l l y a breach of warranty, may have some

app l i ca t ion t o t he Aus t r a l i an T rade P rac t i ces -- Act 1974

i n circumstances such as I am now cons ider ing .

There is no doubt t ha t the misunders tanding af fec ted

t h e enjoyment of many people for whom t h e changed i t i n e r a r y

may have been a serious disappointment and something for

the prevent ion of which every reasonable precaut ion should

be taken. However, I c o n s i d e r t h a t o n t h e somewhat l imi ted

mater ja l befcre ne , and bear ing i n mind t k a t p l e a s o€

guil ty have been entered, I should regard t h i s mat te r as

one warranting the impos i t ion of a pena l ty but n o t a

s u b s t a n t i a l p e n a l t y . I cons ide r t ha t s . 79 (2 ) of t h e Act

. is app l i cab le and tha t t h e c o n t r a v e d i o n s of t h e Act a r e

of t he sane na tu re and occurred a t t h e same time.

I conslder t ha t a t o t a l p e n a l t y of $1000 is appropr ia te

i n r e spec t o€ each der^endant and I propose to d iv ide t h i s

i n t o $5250 i n	r e s p e c t	of	each	informatlon.	The orders 1
make a r e :

.. (1) The de€endants are convicted on each charge.

(2) I impose the fo l lowlng f ines on each defendant :

i n r e spec t o f G . 105 o€ 1977 $250

G . 106 o f	1977	$250
G . 107 o f	1977	$250

G. 108 o€ 1977. $250

making a t o t a l o f $1000 i n respect of each defendant .

I

..

- 5 -

( 3 ) The defendants t o pay the Informant ' s cos ts ,

inc luding Lhe reserved LOS ts ol: last week's

app l i ca t ion i n each case.

I

I

. .