Insight Vacations Pty Ltd T-as Insight Vacations v Young

[2010] HCATrans 305

[2010] HCATrans 305

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S159 of 2010

B e t w e e n -

INSIGHT VACATIONS PTY LTD T/AS INSIGHT VACATIONS

Applicant

and

STEPHANIE YOUNG

Respondent

Application for special leave to appeal

FRENCH CJ
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 NOVEMBER 2010, AT 11.09 AM

Copyright in the High Court of Australia

MR J.E. SEXTON, SC:   May it please the Court, I appear with my learned friend, MR D.I. TALINTYRE, for the applicant.  (instructed by Lee & Lyons)

MR M.J. JOSEPH, SC:   If the Court pleases, I appear with MR A.P.L. NAYLOR, for the respondent.  (instructed by Malouf & Partners)

FRENCH CJ:   Yes, Mr Sexton.

MR SEXTON:   Your Honours, the special leave question is whether section 74(2A) of the Trade Practices Act applies a State statute which authorises the inclusion of a contractual provision that limits or precludes liability for breach of the warranty implied into all consumer contracts by section 74(1).

GUMMOW J:   What is the significance of the exemption clause, if I can use that expression, number 4 on page 23 of the application book?

MR SEXTON:   The significance?

GUMMOW J:   Of its construction for the utility of this whole appeal in this Court.  Would it turn one way or the other on the construction of 4?

MR SEXTON:   It could ultimately, yes, your Honour.  Obviously, that is an issue in terms of whether it is an appropriate vehicle, but what we say about that is that it is a short point.  It was determined, clearly, in a way favourable to the applicant by Chief Justice Spigelman, with whom Justice Sackville agreed on this point.  For that reason, in the context of the importance of the issue thrown up by the statutory construction point we would say that would not be an overwhelming impediment to a grant of leave in this particular case. 

Obviously, any case in which the issue is the implied warranty under section 74(1) and the application of 74(2A) there will be either a statutory provision or if our argument is right a contractual term that will have to be construed so that that should not be a supervening impediment, in our submission.

GUMMOW J:   What do you say about the costs point flagged by your opponent at paragraph 28 on page 116?

MR SEXTON:   I have instructions to give the undertaking in the terms of paragraph 28 of the respondent’s submissions, your Honour.

FRENCH CJ:   Mr Joseph, we would be assisted by hearing from you as to why special leave should not be granted.

MR JOSEPH:   Your Honour, we are not going to suggest that there are not two views open to the court below as to the meaning of 74(2A).  Our submissions are simply these.  One is that is that the majority were correct, secondly, that in addition to the majority’s reasoning is the view that the words “another term”, which were not referred to by any of the court below, adds credence to the majority’s view, that is, the State law has to relate to a breach of not just the implied term but another term.

The third matter is, on the matter of clause 4 – it is a short point, we do not deny that, but we submit that if the Chief Justice is wrong as to what the word “occupies” mean then the whole case falls away.  Secondly, we do not accept that Justice Sackville agreed with Chief Justice Spigelman in that regard at paragraph 150 at page 92 of the application book where he refers to “clause 4”.  They would be the only submissions I think we can make in furtherance of our own written submissions.  If the Court pleases.

FRENCH CJ:   Yes, thank you.

There will be a grant of special leave on the undertaking that you have set out in the submissions.

MR SEXTON:   May it please the Court.

FRENCH CJ:   That would take no more than half a day to a day, I would imagine?

MR SEXTON:   Half a day, your Honour.

FRENCH CJ:   Half a day, yes, all right.  The Court will now adjourn briefly to reconstitute.

AT 11.14 AM THE MATTER WAS CONCLUDED