Jackson v Royal Automobile Club of South Australia Incorporated - [2021] SADC 25

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
JACKSON v ROYAL AUTOMOBILE CLUB OF SOUTH AUSTRALIA INCORPORATED
[2021] SADC 25
Judgment of his Honour Judge Burnett
17 March 2021
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA
INSURANCE - CLAIMS GENERALLY - REFUSAL - GENERALLY
INSURANCE - TRAVEL INSURANCE
The applicant sought to review a minor civil action in which the Magistrate dismissed the claim of the applicant. The applicant was a member of the Royal Automobile Association of South Australia Incorporated (the RAA) and had sought travel insurance from the RAA for a holiday that he and his wife were undertaking to Canada and the United States of America. The RAA was the authorised representative of Tokio Marine and Nichido Fire Insurance Co Ltd (Tokio Marine).
On 9 July 2017, Mr Jackson completed an online application for travel insurance. He downloaded a combined Product Disclosure Statement and Financial Services Guide at the time that he completed the Application Form, but did not read those documents in detail. On the same day, the RAA sent Mr Jackson a letter which enclosed the Certificate of Insurance, the Tax Invoice for the premium and the Combined Services Guide and Product Disclosure Statement, which included the terms of the policy and a Pre-Existing Medical Conditions Declaration.
Those documents made it clear that it was Tokio Marine, and not the RAA, who was the insurer under the policy of insurance.
Shortly after Mr and Mrs Jackson arrived in Canada they fell ill, developing flu-like symptoms. On 5 September 2017, Mr Jackson cancelled their remaining rail journeys and made arrangements and purchased air tickets to return to Australia.
On 6 September 2017, Mr Jackson telephoned the RAA Travel Insurance 24 Hour Emergency Assistance number and advised them that he had cancelled his holiday and was going to a hospital near the hotel at which he was staying. The emergency operator advised him that he could do so, but if he was too unwell to go to the hospital, he could call a doctor to his hotel room and that it was entirely up to him which way he should go about it. The emergency operator further advised Mr Jackson that if he was going to cut his trip short to return home early because it was medically necessary for him to do so, he should obtain some documentation either from the hospital or a doctor that he and his wife were fit to fly home and that they recommended that Mr Jackson and his wife come home. Mr Jackson attended at the hospital, but did not see a doctor as he was required to pay a fee to do so. He did not arrange for a doctor to see him or his wife in their hotel room. Mr Jackson did not further contact the RAA Travel Insurance assistance number or ask the hospital staff to do so.
Mr Jackson and his wife arrived back in Australia on about 11 September 2017. On 16 September 2017, they saw a medical practitioner who signed a certificate, a year later, stating that they had a lower respiratory infection for which they were prescribed medication.
The applicant claimed the RAA and Tokio Marine acted wrongly in refusing indemnity and/or were guilty of misleading and deceptive conduct or negligence.
Held:
1. The Magistrate’s decision is affirmed and the review is dismissed.
2. The applicant did not establish on the evidence that the trip was cancelled or cut short through circumstances beyond his control that he did not expect or intend. To satisfy the requirements of the insuring clause, the applicant had to show that the medical conditions he or his wife were experiencing were such that they were not able to continue with their trip (the relevant cancellation costs being for trips two weeks after 5 September 2017). The applicant did not adduce any evidence that the medical conditions were such that they were not able to continue with their trip.
3. The claims for misleading and deceptive conduct were in relation to financial services and therefore ss 1041G and 1041H of the Corporations Act 2001 (Cth) and ss12DA and 12DB of the Australian Securities and Investments Commission Act 2001 (Cth) applied, rather than s 18 of the Australian Consumer Law. When the Product Disclosure Statement was read as a whole, together with the letter from the RAA dated 9 July 2017, it was clear that Tokio Marine was the insurer and not the RAA. In any event, the applicant did not establish that had he not taken out insurance with Tokio Marine, some other insurance would have covered him for the loss. The other claims for misleading and deceptive conduct failed either because it had not been established they were misleading or deceptive or they were not causative of any loss.
4. The claims in negligence failed either because there was no relevant duty or negligence had not been established. They were simply complaints about the application of the policy and the terms of the policy. In relation to the statements made by the emergency operator, there was no breach of duty by that operator nor any breach that had caused any loss to the applicant. The emergency operator advised Mr Jackson that he should seek medical attention and it was necessary for him to do so if he had to cut short his trip to return home because of medical reasons. It was the applicant who disregarded that advice and did not seek to call a doctor to his room or contact the emergency operator again.
Magistrates Court Act 1991 (SA) s 38; Corporations Act 2001 (Cth) s 763A, 763C, 766B, 766C, 952, 1021E, 1021F, 1021J, 1021L, 1041G, 1041H; Australian Securities and Investments Commission Act 2001 (Cth) s 12DA, 12DB; Competition and Consumer Act 2010 (Cth) s 131A(2)(a), referred to.
Harradine v District Court of South Australia [2012] SASC 96; Gillott v District Court of South Australia [2019] SASC 132; Trittenheim Pty Ltd v H & H Gill Nominees Pty Ltd (1994) 63 SASR 434; Griggs v Norris Group of Companies (2006) 94 SASR 126, [2006] SASC 23; Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60; (2004) 218 CLR 592; Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2001) 241 CLR 357; Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31; [1992] FCA 557; Kimberley v NZI Finance Ltd v Torero Pty Ltd (1989) ATPR (Digest) 46-054, considered.

JACKSON v ROYAL AUTOMOBILE CLUB OF SOUTH AUSTRALIA INCORPORATED
[2021] SADC 25

Civil
Introduction

This is a review pursuant to s 38(6) of the Magistrates Court Act 1991 (SA), of a minor civil action in which the Magistrate dismissed the claim of the applicant, Mr Gary Jackson (Mr Jackson), against the respondent, the Royal Automobile Association of South Australia Incorporated (ABN 90 020 001 807) (the RAA). The applicant is dissatisfied with the judgment of the Magistrate and has made an application for a review of the matter.
Mr Jackson, pursuant to an insurance policy, sought an indemnity and/or damages in the sum of $11,661.17 for cancellation fees incurred whilst on holiday. The total costs incurred by Mr Jackson and his wife as a consequence of the cancellation of his holiday were in excess of this sum, but Mr Jackson limited his claim to the cancellation costs of $11,661.47 to come within the jurisdiction of minor civil actions in the Magistrates Court. Mr Jackson framed his claim in a number of ways including breach of contract, misleading and deceptive conduct and negligence.
Mr Jackson failed in his contractual claim because the Magistrate found that he did not enter into a contract of insurance with the RAA. Instead, the RAA was the disclosed authorised representative of Tokio Marine and Nichido Fire Insurance Co Limited (ABN 80 000 438 291) (Tokio Marine)[1] and therefore the Magistrate found that the contract of insurance was between Mr Jackson and Tokio Marine. The Magistrate found that the claim for misleading or deceptive conduct failed because the Product Disclosure Statement was not defective or misleading or deceptive and did not contain false representations.[2] The Magistrate also found that the RAA did not breach any duty to exercise reasonable care in making a statement or giving advice in connection with the scope of the cover of RAA Travel Insurance.[3] The claims for misleading or deceptive conduct and negligence also failed, in the Magistrate’s view, because they did not cause the loss claimed by Mr Jackson.[4]
[1] Judgment of the Magistrate a [60], [68] and [77].
[2] Judgment at [110].
[3] Judgment at [110].
[4] Judgment at [111].
During the hearing before the Magistrate, Mr Jackson was invited, but declined, to join Tokio Marine as a party to the proceedings. The solicitors acting for the RAA also acted as solicitors for Tokio Marine. As a result of the finding of the Magistrate that Tokio Marine and not the RAA was the insurer, it followed that Mr Jackson’s claim in contract against the RAA failed.
During the review, I again invited Mr Jackson to apply to join Tokio Marine as a party, as it appeared to me it was necessary that Tokio Marine be joined as a party, at least for the purposes of the claim in contract. Mr Jackson agreed to that request and therefore made an application at the commencement of the review to join Tokio Marine as the second respondent to the proceedings. That application was not opposed by the solicitors acting for Tokio Marine. Accordingly, I ordered that Tokio Marine be joined as a respondent to the proceedings to enable a proper determination of Mr Jackson’s claim under the policy of insurance. For the purpose of the Review, I considered the claims made against the RAA to be made against the RAA and/or Tokio Marine.
Application for Review
This review is conducted pursuant to s 38(6) to 38(9) of the Magistrates Court Act. On this review, the Court may inform itself as it thinks fit and in doing so is not bound by the rules of evidence. The Court may also, if it thinks fit, rehear the evidence taken before the Magistrates Court. In hearing and determining this review, the Court must act according to equity, good conscience and the substantial merits of the case, without regard to technicality and legal form. It is important to note that this review is a review of the matter and not a review of the judgment.
Section 38(1) of the Magistrates Court Act sets out provisions that are applicable to the trial of a minor civil action. These provisions provide as follows:
(a)the trial will take the form of an inquiry by the Court into the matters in dispute between the parties rather than an adversarial contest between the parties;
(b)the Court will itself elicit by inquiry from the parties and the witnesses, and by examination of evidentiary material produced to the Court, the issues in dispute and the facts necessary to decide those issues;
(c)the Court may itself call and examine witnesses;
(d)the parties are not bound by written pleadings;
(e)the Court is not bound by the rules of evidence;
(f)the Court must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
Sections 38(6) and 38(7) of the Magistrates Court Act require an examination of the inquisitorial process undertaken by the Magistrate to determine whether there had been a trial by the Magistrate in accordance with those provisions. The conduct of a minor civil action must be considered in the context of the statements made by Blue J in Harradine v District Court of South Australia[5] that the role of the Magistrate in such an action is that of an inquirer, rather than managing an adversarial contest between the parties.
[5] [2012] SASC 96 at [40].
In Gillott v District Court of South Australia,[6] Peek J discussed the meaning of the phrase ‘equity, good conscience and substantial merits of the case’ and quoted from the decision of Olsson J in Trittenheim Pty Ltd v H & H Gill Nominees Pty Ltd,[7] in which His Honour noted that the meaning of that phrase must be construed in the consideration of the nature of the issues involved and, where appropriate, the clear purpose of any relevant statute. Olsson J went on to hold that in certain cases the phrase required that the Court should adopt a broad approach of common sense and common fairness, eschewing all legal or other technicality. In Griggs v Norris Group of Companies,[8] White J referred to the phrase in the context meaning good sense and natural justice of the matter. At times, he held the expression that the decision maker was empowered to do whatever he or she might think necessary to achieve fairness between the litigants.
[6] [2019] SASC 132 at [40]-[46].
[7] (1994) 63 SASR 434 at 442.
[8] (2006) 94 SASR 126, [2006] SASC 23 at [31].
Given the nature of the minor civil review and its purpose to achieve an economical and efficient disposition of the matter, I consider that the phrase ‘equity, good conscience and essential merits of the case’ is used in the context described above, that being the Magistrate is required to act according to good sense and the natural justice of the matter and to do whatever was necessary to achieve fairness between the parties in relation to their legal rights, eschewing legal, or other technicalities. Regard must be had to the substance of the claim whilst ensuring a fair trial, including permitting the parties to have an opportunity to address the real issues in dispute.
The decision of this Court on review is final and is not subject to appeal pursuant to s 38(8) of the Magistrates Court Act.
On this review, I may affirm the judgment of the Magistrate, or rescind it and substitute the judgment of this Court, or rescind the judgment in its entirety.
Conduct of the trial in the Magistrates Court and on Review
The trial in the Magistrates Court was conducted in an inquisitorial style as required by s 38(1)(a) of the Magistrates Court Act. Mr Jackson was the only witness at trial. As noted by the Magistrate in her judgment,[9] the evidence adduced at trial consisted of the following:
a.the evidence of the applicant;
b.a transcript of an audio recording of a telephone conversation between Mr Jackson and the RAA travel insurance emergency operator on 6 September 2017;
c.a Tender Book of copy documents;
d.a DVD recording taken by Mr Jackson of his wife on his mobile phone on 6 or 7 September 2017; and
e.a bundle of documents containing an original itinerary and documents relating to the quantum of the Cancellation Costs.
[9] Judgment at [5].
The RAA did not call any evidence at the trial.
On the review, I admitted into evidence the affidavit of the solicitor for the RAA, David William Johns, sworn 3 March 2020. That affidavit annexed a copy of the letter from the RAA to Mr Jackson dated 9 July 2017, which enclosed the Certificate of Insurance and the combined Financial Services Guide and Product Disclosure Statement which contained the terms of the policy of insurance. The Tender Book had only included extracts of the Product Disclosure Statement. I note that the Magistrate observed in her reasons that the RAA had relied upon the affidavit of Mr Johns, although it did not appear to have been formally tendered.[10]
[10] Judgment at [6].
On the review, I also watched, with the consent of both parties, the DVD recording taken by Mr Jackson of his wife on 6 or 7 September 2017.
Having read the transcript of the file and the exhibits, I am satisfied that the Magistrate conducted the trial fairly and in accordance with the requirements set out in s 38(1) of the Magistrates Court Act.
Findings of the Magistrate
The Magistrate found that the Mr Jackson and his wife planned to travel to Canada and the United States of America in September 2017 for a two-month holiday, including undertaking railway tours both in Canada and the United States.[11] Mr Jackson was 66 years of age and his wife 68 years of age at the time. Mrs Jackson, suffered from a medical condition called paroxysmal atrial fibrillation.
[11] Judgment at [26] and [29].
On 9 July 2017, Mr Jackson, who is a member of the RAA, completed an online application for travel insurance. Mr Jackson gave evidence that he looked at the Product Disclosure Statement at the time that he completed the application form, particularly in relation to the pre-existing medical declaration, but did not read it in any detail.[12]
[12] Judgment at [27] and [73].
On 9 July 2017, the RAA sent Mr Jackson a letter which enclosed the Certificate of Insurance, the Tax Invoice for the premium and the combined Financial Services Guide and Product Disclosure Statement which included the terms of the policy of insurance and a medical conditions declaration. Given that the tax invoice indicated that payment had not been made and further, that the amount of that invoice could only have been determined after consideration of the declaration made by Mrs Jackson of her pre-existing medical condition (for which an additional premium of $619.33 was charged), payment could only have been made some time after 9 July 2017.
Mr Jackson and Mrs Jackson arrived in Vancouver, Canada on 27 August 2017. Their itinerary then comprised train travel from Vancouver, British Columbia to Jasper, Alberta on 5 September 2017, a further train trip to Prince Rupert, British Columbia via Prince George, British Columbia on 8 September 2017, a return train trip to Jasper, Alberta on 14 September 2017 and then a train trip from Jasper to Toronto, Ontario on 16 September 2017. I will refer to these journeys as the Canadian Rail Journeys. These trips, although cancelled, do not form part of the claim as Mr Jackson was able to obtain a full refund for those trips.[13]
[13] Judgment at [29].
On 21 September 2017, Mr and Mrs Jackson were to commence a 14 day “Grand Tour of New England and Canada”, a Great Rail Journeys Tour, and then a further Great Rail Journeys Tour called “Tracks of the Deep South” on 7 October 2017. They were to leave that tour at Houston on 19 October 2017 and then travel to Los Angeles by train on 21 October 2017. They were to catch a flight to Adelaide, leaving on the evening of 23 October 2017.[14]
[14] Judgment at [29].
Whilst they were in Vancouver sometime between 29 August 2017 and 5 September 2017, Mr Jackson and his wife began to feel unwell. The Magistrate found that it appeared from the description given by Mr Jackson and also from the mobile telephone recording that Mr Jackson and his wife had flu like symptoms,[15] although the Magistrate noted that Mr Jackson appeared less certain of this diagnosis when, in his call with the emergency operator on 6 September 2017, he described his wife as coming down with the flu “as far as we could tell”.[16]
[15] Judgment at [30].
[16] Judgment at [104].
Mr Jackson and his wife were due to catch the train on 5 September 2017 from Vancouver to Jasper and arrived at the train station to do so. However, they decided they were too unwell and did not catch the train.[17] Mr Jackson and his wife left the train station and went to a nearby Flight Centre on 5 September 2017 to make arrangements to return to Australia. On 5 September 2017, Mr Jackson paid the sum of CAD$4,798.86 to Flight Centre for return airfares to Australia and four night’s accommodation in Vancouver prior to returning.[18]
[17] Judgment at [31].
[18] Judgment at [32].
Between 2.00 am and 3.00 am on 6 September 2017, Mr Jackson telephoned the RAA Travel Insurance 24-hour emergency assistance number. The call was recorded.[19] The transcript of the telephone conversation between Mr Jackson and the emergency operator of the insurer is set out in full at paragraph 34 of the judgment of the Magistrate. Relevantly, the transcript reveals:
[19] Judgment at [33].
a.Mr Jackson advised the emergency operator that he and his wife had come over to Canada and America for two months and arrived on 27 August 2017.
b.Mr Jackson said that on 29 August 2017, his wife had come down with the flu as far as they could tell and then on 2 September he also came down with it and said, “it laid my wife out quite badly at the time and that it's been laying me out pretty well since.”
c.Mr Jackson said that they were due on 5 September 2017 to go to Jasper and continue the rest of the holiday.
d.Mr Jackson said that because they'd been feeling so bad, they decided to cancel the rest of the holiday, which they've done, and that they've checked into a hotel near the airport and booked a flight home on Saturday.
e.Mr Jackson said that he was having trouble getting over this and not managing to eat or drink much and kept bringing back everything he ate or drank. He said that for a couple of days he hadn't been eating or drinking a lot and like last night he was sick again. So, he said it was probably worth getting checked out.
f.Mr Jackson said that he was dehydrated.
g.Mr Jackson said that he needed to get checked out and that he was feeling queasy all the time.
h.The emergency operator said that he [Mr Jackson] needed to seek medical attention “which if you are going to do that by all means you have unlimited overseas medical cover.”
i.Mr Jackson said that there was a hospital behind the hotel and asked if he could go there.
j.The emergency operator said that if he was well enough to go there then he could do so, but if not, he could call a doctor to his room. It was entirely up to him which way he wanted to go about it. He was covered for either.
k.The emergency operator said that “if you’re going to cut your trip short to return home early though, it would need to be medically necessary for you to do so. So, if you can obtain some sort of documentation either from the hospital or the doctor just advising that if you are fit to fly home and if it is that bad that they recommend you come home”.

After that telephone conversation, Mr Jackson attended the emergency department of the nearby hospital. The hospital staff advised Mr Jackson that they did not deal directly with insurers and that as he and his wife were non-residents, they were required to pay an amount of approximately CAD $1,013.00 each to register for treatment at the hospital. Mr Jackson also incorrectly believed that the hospital would require further payment for any examination, test or treatment in addition to the registration fee when that was not the case. Mr Jackson did not have the funds to pay that amount and returned to the hotel without obtaining any medical treatment.[20]
[20] Judgment at [35] and [36].
Mr Jackson did not attempt to phone the RAA Travel Insurance Emergency Office Assistance number again or ask the hospital staff to do so. Mr Jackson did not attempt to arrange a doctor to attend upon him or his wife at the hotel.[21]
[21] Judgment at [37].
On either 6 or 7 September 2017, Mr Jackson made an audio and visual recording with his mobile telephone of his wife coughing in the hotel room.[22]
[22] Judgment at [39]
Mr Jackson and his wife arrived back in Australia on about 11 September 2017. On 16 September 2017, they saw a general medical practitioner, Dr Likos. Dr Likos did not give evidence at the trial, but two medical certificates signed by him on 5 September 2018 (a year later) were tendered in evidence. They state that Mr Jackson and Mrs Jackson were seen by Dr Likos on 16 September 2017 and both were suffering from a lower respiratory infection for which they were prescribed medication.[23]
[23] Judgment at [41]
Insurance Policy
Mr Jackson claimed an indemnity under the policy for reimbursement of cancellation fees, lost deposits and associated extra travel costs totalling approximately $17,000. However, he has limited his claim to cancellation costs, to stay within the jurisdictional limit of $12,000 for minor civil actions. These costs relate to the two Great Rail Journeys Tours which were due to commence on 21 September 2017 and 7 October 2017.
The policy of insurance is contained within the Product Disclosure Statement. Page 7 of the Product Disclosure Statement states that the RAA has partnered with a large global insurer. Page 28 of the Product Disclosure Statement expressly states that Tokio Marine is the insurer and the issuer of this policy and the Product Disclosure Statement. The RAA, it is stated, arranged for the issue of the insurance as the authorised representative of Tokio Marine. Page 75 of the Product Disclosure Statement also specifically refers to Tokio Marine as the insurer.
The relevant clauses of the Policy are set out below.
The definitions contained within the Policy state that:
The terms “We, Our, Us” means Tokio Marine & Nichido Fire Insurance Co Ltd.
Clause 1A of the Policy states:
We will cover you for:
Your cancellation fees and lost deposits for travel and accommodation arrangements that you have pre-paid and cannot recover in any way if your trip is cancelled or cut short at any time through circumstances beyond your control that you did not expect or intend.
The maximum benefit for this section is:
Basics over        -
Essentials Cover   $25,000
Premium Cover $unlimited
Annual Multi-plan trip    $unlimited
Domestic Plan    $unlimited
Domestic Cancellation Plan Only     $1000
Exclusion clause 1.1 states:
We will not cover you for losses, liabilities or expenses that are for, related to or as a result of:
1.1 A change of plans because you or your travelling companion change your mind and decide not to proceed with your original trip.
In addition, the Policy provided for unlimited “reasonable overseas medical and hospital expenses” subject to the qualifications and exceptions set out in the Policy.
The Claims By The Applicant
Mr Jackson made a number of claims. I will deal with each of those claims in turn.
Breach of Contract
Mr Jackson claimed that the RAA (and now Tokio Marine, once it was added as a respondent to the proceedings) breached the terms of the Policy by refusing to indemnify him for the cancellation costs.
The Magistrate determined that the Policy was entered into between the second respondent, Tokio Marine and Mr Jackson, and not between the RAA and Mr Jackson. As Tokio Marine was not a party to the proceeding before the Magistrate, the Magistrate found that the claim made by Mr Jackson for a failure to indemnify under the policy of insurance failed.
Tokio Marine was joined as a party in the Review before me and therefore the Magistrate's reasoning in rejecting the breach of contract claim is no longer applicable. I note that the Magistrate did find that Mr Jackson had not established, on the balance of probabilities, that he and his wife were seriously ill with the flu or that it was medically necessary for them to cancel the remaining seven weeks of their original trip. In this regard, the Magistrate found that the evidence did not establish that they were medically unfit to continue their great rail tours, which were the subject of the cancellation costs, because those tours were still some two weeks away.
The formation of the contract is not easily analysed through the prism of traditional offer and acceptance theory. That theory would suggest that either the insurer made an offer (on line) that it would offer insurance on the terms of the Product Disclosure Statement and that by completing the application form, Mr Jackson accepted that offer. The difficulty with that analysis is that matters such as cost of the premium had not yet been agreed upon. Alternatively, the letter from the insurer setting out the terms of the Policy and the premium could be considered as an offer or counter offer which Mr Jackson has accepted by the payment of the premium.
However, the offer and acceptance is analysed, in my view the terms of the Policy are contained within the combined Product Disclosure Statement and Financial Services Guide. That document, along with the letter from the RAA dated 9 July 2017, the Certificate of Insurance, the Tax Invoice and the Medical Conditions Declaration comprise the documentation that was supplied to Mr Jackson prior to the formation of the contract. This documentation, as a whole, forms the contract between Mr Jackson and Tokio Marine.[24]
[24] Judgment at [60].
Under clause 1A of the Policy, Mr Jackson must establish that their trip was cancelled through circumstances beyond his control that he did not expect or intend.
In my view, that clause requires, in the present case, Mr Jackson to prove that his and his wife's medical condition caused the cancellation of the trip.
I do not consider that the evidence satisfies that causation requirement. In particular, in my view, Mr Jackson has not established that he and his wife's medical conditions were such that on 5 September 2017 (when he cancelled the trip), they would be unable to continue their trip on 17 September 2017.
The evidence adduced by Mr Jackson does not demonstrate that he and his wife were or were likely to be unable to undertake the trip on 17 September 2017. There was no evidence, as at 5 September 2017, as to how long or how severe their illness was. There was no evidence as to the exact nature of the illness which Mr Jackson and his wife were suffering from. In this regard, I note that in the call to the operator, Mr Jackson stated that as far as he could tell, they had come down with the flu. Certainly, the symptoms appeared to be consistent with that as do the recording made by Mr Jackson on his mobile. The evidence from the medical practitioner in South Australia, Dr Likos, who saw Mr Jackson and Mrs Jackson on 15 September 2017, does not establish that they would have been unfit to undertake the trip on 17 September 2017. In this regard, I note that the medical practitioner states that they had a lower respiratory infection, but does not go beyond that.
The evidence that Mr Jackson required to establish his claim would most satisfactorily have been obtained from a medical practitioner or from a hospital. Mr Jackson did not obtain any such evidence. It was not a term of the Policy that medical evidence was a pre-requisite for the Policy to respond. There will be situations where, in the absence of medical evidence, the insured could still establish that they were not able to continue their trip when they cancelled their policy. However, this is not such a case. The evidence does not satisfy, in my view, that causative link.
Misleading and Deceptive Conduct
Mr Jackson has also claimed that the RAA and Tokio Marine had engaged in misleading or deceptive conduct or made false or misleading representations or engaged in dishonest conduct contrary to sections 1041G (which deals with dishonest conduct) and 1041H of the Corporations Act 2001, sections 12DA and 12DB of the Australian Securities and Investments Commission Act 2001 and section 18 of the Australian Consumer Law.
The taking out of insurance is managing a financial risk within the meaning of section 763C of the Corporations Act. As such, taking out insurance is a financial product within the meaning of 763A of the Corporations Act. Section 766A provides that a person provides a financial service if they provide financial product advice. Section 766B defines financial product advice as a recommendation, or statement of opinion or a report of those things that is intended to or could be reasonably expected to influence a person in making a decision in relation to a financial product. Section 766C further provides that a person provides a financial service if they deal in a financial product. Pursuant to s 766C a person deals in a financial product if, whether as principal or agent, they issue a financial product. The consequence of these provisions is that the claims made by Mr Jackson in these proceedings are in relation to financial services and financial products and therefore sections 1041G and 1041H of the Corporations Act and sections 12DA and 12DB of the Australian Securities and Investments Commission Act apply. Section 131A(2)(a) of the Competition and Consumer Act 2010 provides that Chapter 2-1 of the Australian Consumer Law (which contains the prohibition against misleading and deceptive conduct) does not apply to conduct engaged in relation to financial services. The prohibition of misleading and deceptive conduct which is contained in s 18 of the Australian Consumer Law forms part of Chapter 2-1 with the consequence that the Australian Consumer Law does not apply to the impugned conduct.
The distinction is of little consequence as the provisions that I have referred to in the Corporations Act and Australian Securities and Investments Commission Act are to the same effect as s 18 of the Australian Consumer Law.
The claims for misleading or deceptive conduct made by Mr Jackson are vague and confusing, but can be grouped in the following broad categories:
1.the Product Disclosure Statement falsely represented that RAA was the insurer when that was not the case;
2.the Product Disclosure Statement falsely represented that there was available a global network of doctors and nurses, when that network did not exist;
3.the contact details of the emergency response provider, On-Call, were not provided;
4.the Product Disclosure Statement was misleading because it failed to indicate that an insured needed a Guarantee of Payment to be treated under the Policy and there was a procedure to obtain that guarantee;
5.the Product Disclosure Statement was misleading or deceptive because it represented that the coverage was unlimited when that was not the case.
6.the Product Disclosure Statement did not contain a requirement that medical certification was required for cancellation claims. In terms of framing a claim for misleading and deceptive conduct, Mr Jackson appears to be claiming that either the Product Disclosure Statement falsely represented that a medical certificate was not required when the practice of the insurer was that it was required or alternatively that the insurer in refusing the claim falsely represented that it was entitled to do so because without a medical certificate supporting the claim.
In my view, the Magistrate was correct to conclude:
1.The RAA and Tokio Marine had not engaged in misleading and deceptive conduct.
2.Even if they had, that was not causative of any loss to Mr Jackson.
The claims based on misleading or deceptive conduct face a difficulty at the outset because the evidence from Mr Jackson was that he had not read the Product Disclosure Statement in detail when he entered into the Policy. He cannot therefore have relied upon the Product Disclosure Statement in entering into the Policy, except perhaps in relation to his claim that RAA was the insurer.
The question as to whether conduct was misleading or deceptive must be considered in accordance with the well-established statement of principle enunciated by McHugh J in Butcher v Lachlan Elder Realty Pty Ltd (citations omitted):[25]
The question whether conduct is misleading or deceptive or is likely to mislead or deceive is a question of fact. In determining whether a contravention of s 52 has occurred, the task of the court is to examine the relevant course of conduct as a whole. It is determined by reference to the alleged conduct in light of the relevant surrounding facts and circumstances. It is an objective question that the court must determine for itself. It invites error to look at isolated parts of the corporation’s conduct. The effect of any relevant statement or actions or any silence or inaction occurring in the context of a single course of conduct must be deduced from the whole course of conduct. Thus, where the alleged contravention of s 52 relates primarily to a document, the effect of the document must be examined in the context of the evidence as a whole. The court is not confined to examining the document in isolation. It must have regard to all the conduct of the corporation in relation to the document and any statement, action, silence or inaction in connection with the document.
[25] [2004] HCA 60; (2004) 218 CLR 592 at [109]
As I have previously said, when read as a whole, the Product Disclosure Statement was not misleading or deceptive. The Product Disclosure Statement made it clear that RAA was an authorised representative of Tokio Marine and it was that latter entity that was the insurer.[26] The tax invoice referred to Tokio Marine as the insurer. The medical conditions declaration also referred to Tokio Marine as the entity that had issued the insurance.
[26] Judgement at [65]-[68] and [81].
Further, Mr Jackson had not suffered any loss as a result of the insurer being Tokio Marine, rather than the RAA. Even if he could establish that he would not have entered into the contract of insurance had he known that the insurer was in fact Tokio Marine and not the RAA, the loss suffered by him would have been limited to the return of the premium. To obtain damages for the cancellation fees, Mr Jackson would have to establish that any alternate cover would have covered him for their cancellation costs in the circumstances that occurred. There was no evidence of the terms of the alternate cover.
Mr Jackson has also claimed that the Product Disclosure Statement was misleading or deceptive because it referred to the insurer having a global network or doctors, nurses and logistical staff to assist when that was not the case.
Although the RAA and Tokio Marine clearly made that representation in the Product Disclosure Statement, Mr Jackson did not adduce any evidence that the representation was false. Mr Jackson also did not adduce any evidence that such a false representation was causative of his loss. There is no evidence that it was any lack of access to a network of doctors to assist the applicant (as stated on the Product Disclosure Statement), that caused the Mr Jackson to suffer loss. Rather, it was Mr Jackson who made the decision to cancel the remainder of the trip, prior to even contacting the emergency operator of the RAA/Tokio Marine. Further, it was Mr Jackson who decided not to seek medical treatment, even after he was advised to do so by the emergency operator.
The next two claims of misleading conduct can be considered together. Mr Jackson claims that the Product Disclosure Statement was misleading and deceptive because it failed to disclose the details of the On-Call number and the fact that a guarantee of payment was required. Although, on some occasions, a failure to disclose something may be misleading or deceptive, the question is whether in light of all the relevant circumstances, constituted by acts, omissions, statements or silence, there has been conduct which is or is likely to be misleading or deceptive.[27] In Demagogue Pty Ltd v Ramensky,[28] Gummow J approved the statement by French J in Kimberley v NZI Finance Ltd v Torero Pty Ltd[29] that:
However, unless the circumstances are such as to give rise to the reasonable expectation that if some relevant fact exists it would be disclosed, it is difficult to see how mere silence could support the inference that the fact does not exist.
[27] Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2001) 241 CLR 357 at [14]; Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31 at 40; [1992] FCA 557.
[28] Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31 at 41; [1992] FCA 557.
[29] (1989) ATPR (Digest) 46-054 at 53,195.
In the present case, that statement is apposite. There has been no representation about the On-Call number or the guarantee payment. The silence about those matters does not give rise to any representation about these matters. In any event, there is no evidence that any loss was caused by any understanding that Mr Jackson may have had about these matters.
Lastly, Mr Jackson claims that the Policy (and therefore the Product Disclosure Statement) was misleading or deceptive because it made a false representation about the need for a medical certificate and further falsely represented that there was unlimited cover.
In my opinion, these claims have no merit. The Product Disclosure Statement clearly sets out the terms of the Policy. Whether a claim comes within the terms of the Policy is a matter for the construction of those terms. Clause 1A (the insuring clause) does not require medical certification, but it does require the trip to be cancelled or cut short through circumstances beyond the control of the insured. Further, coverage was excluded if the losses related to a change of plans. It was the construction of these terms, in the circumstances of the claim made by Mr Jackson that led the claim to be rejected. There was no representation that a medical certificate was not required. Similarly, the Policy set out the terms upon which a claim would be covered. If the claim was within the terms of the Policy, the coverage would be unlimited. When read as a whole, the Product Disclosure Statement was not misleading.
Negligence
Mr Jackson also claims that the RAA was negligent in relation to the coverage which was provided.
Some of those claims are based on negligent misstatement and therefore fail for the same reasons as the same claims were not misleading and deceptive. The claims of negligent misstatement in relation to Tokio Marine being the insurer and there being a global network of doctors and nurses fall into that category. There was, on the evidence, no negligent misstatement.
Other complaints of negligence relate to the terms of the Policy being offered. In this regard, I do not consider that there was any duty of care owed by the RAA. The RAA was not under any duty of care to its members to offer a policy of insurance that contained any particular terms. Any policy of insurance is offered to a wide range of people and it is up to each individual to determine whether a particular policy satisfies their requirements. The claims that RAA was negligent because they failed to conduct due diligence or adequate due diligence, failed to act in the best interests of its members and sold insurance that was not fit for purpose or sold insurance based on a defective Product Disclosure Statement all fail for this reason. Further, there is no evidence that RAA beached its duty of care in respect to these claims, even assuming that a duty of care did exist. There is no evidence that the Product Disclosure Statement was defective.

The third category of claims in negligence relate to mattes involving the application of the Policy. There was no breach of duty by the RAA or Tokio Marine in applying the terms of the Policy to Mr Jackson’s circumstances. The claim that it was negligent to deny the claim comes within that category.
The claim that the RAA had a conflict of interest and therefore acted negligently fails for a number of reasons. It was not the RAA but Tokio Marine who denied the claim. There was no conflict (and nor was one articulated) between the RAA’s interests and duty. In any event, the RAA’s interests were clearly disclosed in the Product Disclosure Statement.
The last category of negligence claims relates to statements and advice made by the emergency operator and that operator’s alleged failure to advise Mr Jackson about the medical services that might be utilised by him and the procedure by which he might access those services. Included in these claims, is the allegation that the RAA and Tokio Marine were negligent in providing a 24 hour assistance number in circumstances where the operator was not capable of locating medical services.
I am prepared to accept that the emergency operator owed a duty of care to the insured, in this case, Mr Jackson. However, I do not find that the operator breached that duty or that any breach caused loss to Mr Jackson. There was only one call between Mr Jackson and the operator. That call occurred after Mr Jackson had already cancelled the relevant rail journeys and incurred the cancellation fees for which he now claims. Further, the emergency operator expressly advised Mr Jackson to seek medical attention and said that if he was going to cut short his trip to return home, it would need to be medically necessary for him to do so. It was Mr Jackson who said that he would try the hospital near the hotel. The emergency operator further advised Mr Jackson that if he was not well enough to go to the hospital, he could call a doctor to his hotel room. Mr Jackson did not do that. Nor did he contact the emergency operator again. Nothing said by the emergency operator caused Mr Jackson to act in a certain way or prevented him from accessing medical services.
Bad faith
Mr Jackson claimed that the RAA and Tokio Marine acted in bad faith in refusing to pay a valid claim. That claims relies upon the premise that Mr Jackson had a valid claim under the Policy. I have already found that he did not have a valid claim. There is no evidence or pleading that the RAA or Tokio Marine acted in bad faith in any way.
Offences under the Corporations Act
Mr Jackson has made a number of claims that the RAA or Tokio Marine contravened a number of provisions of the Corporations Act, namely ss 952E, 1021E, 1021F, 1021J and 1021L by selling insurance pursuant to a defective Product Disclosure Statement.
These claims fail for a number of reasons. First, there is no evidence that the Product Disclosure Statement was defective. Secondly, these provisions of the Corporations Act make it an offence to contravene those sections and do not provide for a civil remedy in respect of those breaches. Thirdly, there are no allegations as to what acts of the RAA and/or Tokio caused a contravention of those sections and how that caused loss to Mr Jackson.
Conclusion
For the reasons that I have expressed, I dismiss the review of Mr Jackson and affirm the decision of the Magistrate.