Ferme v Kimberley Discovery Cruises Pty Ltd - [2015] FCCA 2384

FEDERAL CIRCUIT COURT OF AUSTRALIA

FERME & ORS v KIMBERLEY DISCOVERY CRUISES PTY LTD

[2015] FCCA 2384

Catchwords:
CONSUMER LAW – Where term in contract provided for forfeiture of amount paid upon cancellation by respondent – where respondent cancelled contracted cruise because of inclement weather – where respondent forfeited amounts paid by applicants – whether forfeiture term unfair for the purposes of s.23(1) of the Australian Consumer Law – whether standard form contract for the purposes of s.23(1) of the Australian Consumer Law – where standard form contract – where forfeiture term unfair – forfeiture term void – whether applicants entitled to recover amounts paid for a consideration that has wholly failed.

Legislation:

Australian Consumer Law, Part2-3, ss.23, 23(1), 23(1)(b), 24, 24(1), 24(1)(a), 24(1)(b), 24(1)(e), 24(2), 24(2)(b), 24(3), 24(4), 25, 25(1), 25(1)(a), 25(1)(k), 27, 27(1), 27(2), 236
Contracts Review Act 1980 (NSW)

Baltic Shipping Company v Dillon (1993) 176 CLR 344

First Applicants:

THOMAS FERME AND LAUREL FERME

Second Applicant:

VALMAE WEST

Third Applicant:

KATHLEEN WOOD

Fourth Applicants:

RICHARD AND HEATHER HARRY

Fifth Applicant:

MARIE PEGLER

Sixth Applicants:

JAN AND PETRONELLA DE VRIES

Respondent:

KIMBERLEY DISCOVERY CRUISES PTY LTD ACN 099 749 541

File Number:

BRG 1122 of 2012

Judgment of:

Judge Jarrett

Hearing date:

28 November 2013

Date of Last Submission:

28 November 2013

Delivered at:

Brisbane

Delivered on:

2 September 2015

REPRESENTATION

Counsel for the Applicant:

Mr Wilson QC

Solicitors for the Applicant:

Rogers Barnes & Green

Counsel for the Respondent:

Mr Tyndall

Solicitors for the Respondent:

Bowen Legal

ORDERS

The respondent pay to the first applicants the sum of $14,990 together with interest thereon from 20 December, 2012 in such sum as might be agreed between the parties and failing agreement to be fixed by the Court upon application made within the next 28 days for that purpose;
The respondent pay to the second applicant the sum of $7,495 together with interest thereon from 20 December, 2012 in such sum as might be agreed between the parties and failing agreement to be fixed by the Court upon application made within the next 28 days for that purpose;
The respondent pay to the third applicant the sum of $7,495 together with interest thereon from 20 December, 2012 in such sum as might be agreed between the parties and failing agreement to be fixed by the Court upon application made within the next 28 days for that purpose;
The respondent pay to the fourth applicants the sum of $14,990 together with interest thereon from 20 December, 2012 in such sum as might be agreed between the parties and failing agreement to be fixed by the Court upon application within the next 28 days for that purpose made;
The respondent pay to the fifth applicant the sum of $7,495 together with interest thereon from 20 December, 2012 in such sum as might be agreed between the parties and failing agreement to be fixed by the Court upon application made within the next 28 days for that purpose;
The respondent pay…

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: [2015] FCCA 2384
Decision Date: 2 September 2015

CaseChat Overview and Summary

Ferme (the plaintiff) brought proceedings against Kimberley Discovery Cruises Pty Ltd (the defendant) in the Magistrates Court of Western Australia. The plaintiff alleged that he suffered personal injury as a result of a slip and fall on a vessel operated by the defendant. The plaintiff claimed damages for negligence.

The primary legal issue before the Court was whether the defendant owed a duty of care to the plaintiff, and if so, whether that duty had been breached. The Court was required to determine if the defendant's actions or omissions caused the plaintiff's injuries, and if those injuries were reasonably foreseeable.

Judge Jarrett found that the defendant owed a duty of care to the plaintiff as a passenger on its vessel. However, the Court concluded that the plaintiff had failed to establish that the defendant had breached this duty. The evidence did not demonstrate that the area where the plaintiff fell was in a dangerous condition, nor that the defendant had failed to take reasonable steps to ensure the safety of its passengers. The plaintiff's own evidence regarding the circumstances of the fall was found to be inconsistent and unreliable.

The Court therefore dismissed the plaintiff's claim.

Orders