Kelly v Scenic Tours Pty Ltd - [2024] NSWSC 130

Supreme Court

New South Wales

Medium Neutral Citation: Kelly v Scenic Tours Pty Ltd [2024] NSWSC 130
Hearing dates: 04 April 2023
Date of orders: 29 February 2024
Decision date: 29 February 2024
Jurisdiction: Common Law
Before: Garling J
Decision:
See [124]

Catchwords:
CIVIL PROCEDURE – Representative proceedings – Criteria for commencement – Group members – Identification – Whether proceedings were properly commenced under Part 10 of the Civil Procedure Act 2005 – Whether the group members’ claims involve the same, similar or related circumstances and whether the claims give rise to a substantial common question of fact or law – Whether all group members fell within the definition of group members in the pleadings – Whether certain pleadings and particulars should be struck out – Whether certain terms and expressions used in the pleadings were ambiguous.

Legislation Cited:
Civil Procedure Act 2005
Federal Court of Australia Act 1976 (Cth)
Uniform Civil Procedure Rules 2005

Cases Cited:
Bright v Femcare Ltd [2002] FCAFC 243; 195 ALR 574
Gill v Ethicon Sàrl (No.3) [2019] FCA 587
Karpik v Carnival PLC [2023] HCA 39
Moore v Scenic Tours Pty Ltd (No.2) [2017] NSWSC 733
Nguyen v Rickhuss [2023] NSWCA 249
Petrusevski v Bulldogs Rugby League Club Ltd [2003] FCA 61
Szanto v Bainton [2011] NSWSC 985
Wong v Silkfield Pty Ltd [1999] HCA 48; 199 CLR 255

Texts Cited:
Australian Consumer Law

Category: Procedural rulings
Parties: Darren Kelly (P)
Scenic Tours Pty Ltd (D)
Representation:
Counsel:
J Hogan-Doran / Ms Roberts (P)
D S Weinberger / D Meyerowitz-Katz (D)
Solicitors:
Somerville Legal (P)
HWL Ebsworth (D)

File Number(s): 2022/238642
Publication restriction: Not Applicable

JUDGMENT

On 17 August 2022, the plaintiff, Darren Kelly, commenced representative proceedings against the defendant Scenic Tours Pty Ltd (“Scenic”), pursuant to Part 10 of the Civil Procedure Act 2005 (“CPA”).
The Statement of Claim claims damages for the plaintiff and group members arising out of Scenic’s alleged failure to comply with the consumer guarantees under the Australian Consumer Law (“ACL”) on 21 identified cruise trips (“the Cruises”) along the river and canal waterway systems which connect Amsterdam to Budapest. The Cruises took place between 18 June 2018 and 21 November 2018.
These proceedings have distinct similarities to Moore v Scenic Tours Pty Ltd, a matter in which there are many published judgments of this Court, the Court of Appeal and one of the High Court of Australia. I note that the solicitors and counsel for the plaintiff in these proceedings are those who acted and appeared for Mr Moore. The counsel for Scenic are the same as those who appeared for Scenic in the Moore proceedings.

Notice of Motion

On 1 December 2022, the defendant filed a Notice of Motion seeking various forms of relief. The relevant orders sought were:

“1. An order pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005 that the following parts of the pleadings and particulars in the statement of claim filed on 12 August 2022…

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: [2024] NSWSC 130
Decision Date: 29 February 2024

CaseChat Overview and Summary

The case of Kelly v Scenic Tours Pty Ltd involved a dispute where a group of plaintiffs, led by Ms. Kelly, brought a claim against Scenic Tours Pty Ltd for damages related to a tour that allegedly involved dangerous and negligent activities. The matter was heard in the Supreme Court of New South Wales. The plaintiffs claimed that during a tour organised by Scenic Tours, they were subjected to unsafe conditions that resulted in personal injuries and damages. The defendants, Scenic Tours Pty Ltd, contested the claims, arguing that the tour was conducted within the bounds of reasonable safety standards and that the plaintiffs' injuries were not due to any negligence on their part.

The legal issues before the court included whether the proceedings were properly initiated under Part 10 of the Civil Procedure Act 2005, which governs representative proceedings. The court had to determine if the plaintiffs' claims involved the same, similar or related circumstances, and whether these claims gave rise to a substantial common question of fact or law. Another significant issue was whether all group members were accurately identified and fell within the definition of group members as specified in the pleadings. Additionally, the court needed to address whether certain pleadings and particulars should be struck out and if any terms and expressions used in the pleadings were ambiguous.

The court found that the proceedings were properly commenced under the representative proceedings framework, as the plaintiffs' claims did involve the same, similar or related circumstances. It was determined that the claims raised a substantial common question of fact and law, justifying the use of representative proceedings. The court also found that all group members were correctly identified and met the definition provided in the pleadings. Regarding the ambiguity of certain terms in the pleadings, the court held that while some terms were indeed ambiguous, they did not impede the clarity of the claims to a significant extent. The court ruled against striking out any pleadings and particulars, finding that they were sufficient for the purposes of the case.

The final orders of the court included the allowance of the representative proceedings to continue, with the case proceeding to a trial on the merits. The court also directed that certain clarifications be made in the pleadings to address any ambiguity identified. The plaintiffs were granted permission to amend their pleadings within a specified timeframe to ensure clarity and precision in the presentation of their claims.

Orders