Moore v Scenic Tours Pty Ltd

[2015] NSWSC 1777

Supreme Court

New South Wales

Medium Neutral Citation:

Moore v Scenic Tours Pty Ltd [2015] NSWSC 1777

Hearing dates:

26 November 2015

Date of orders:

26 November 2015

Decision date:

26 November 2015

Jurisdiction:

Common Law

Before:

Beech-Jones J

Decision:

(1)   Grants leave to the plaintiff to file and serve within seven days a Further Amended Statement of Claim in the form attached to the submissions of counsel for the plaintiff dated 24 November 2015, and further amended to:
   (a)   exclude those persons who booked and travelled on the cruise from Bucharest to Budapest departing on 6 June 2013 from the description of the group in paragraph 2;

 

   (b)   by the substitution of ‘22(1)(a) and (d)’ in the opening words of the particulars to proposed 17I(a) for “21(1)(a) and (d)”;

 

   (c)   by the inclusion of the words ‘after they were contractually bound’, after the phrase ‘terms and conditions’, that is second appearing in particular (ii) to the particulars to [17I(a)].

 

(2)   The defendant to file any amended defence on or before 11 December 2015.

 

(3)   The plaintiff to file any amended reply by 18 December 2015.

 

(4)   The time for the defendant to file its evidence be extended to 29 January 2016.

 

(5)   The plaintiff to file and serve a revised proposed set of common questions on or before 18 December 2015.

 

(6)   The defendant to file and serve a revised version of proposed set of common questions by 29 January 2016.

 

(7)   Any previous order in relation to mediation be set aside and instead order mediation to occur by 10 March 2016.

 

(8)   The plaintiff's notice to produce to the defendant be stood over to 12 February 2016.

 

(9)   The plaintiff pay the costs thrown away by reason of the amendments to the Amended Statement of Claim, including, but not restricted to, the costs that have been incurred to date in meeting so much of the case that concerns the ninth cruise.

 (10)   The defendant pay half the costs of the plaintiff’s notice of motion filed 5 November 2015.

Catchwords:

CLASS ACTION – application to amend Statement of Claim – whether amendment reflects new case – whether allegation of knowledge adequately particularised – whether subgroups should be appointed – whether orders for “class closure” should be made.

Legislation Cited:

- Civil Procedure Act 2005 (NSW) – s 168
- Competition and Consumer Act 2010 (Cth) – Schedule 2
- Contracts Review Act 1980 (NSW) – s 7, s 9

Cases Cited:

- Johnson Tiles Pty Limited v Esso Australia Pty Limited (No 3) [2001] VSC 372
- King v GIO Holdings Limited [2000] FCA 617; 100 FCR 209
- Lam v Rolls Royce PLC (No 3) [2015] NSWSC 83
- Matthews v SPI Electricity Pty Limited & Ors (Ruling No 5) [2012] VSC 66; 35 VR 615
- Matthews v SPI Electricity Pty Ltd [2013] VSC 17

Category:

Procedural and other rulings

Parties:

David Moore – Plaintiff
Scenic Tours Pty Ltd – Defendant

Representation:

Counsel:
A. Abadee – Plaintiff
D. Weinberger – Defendant

  Solicitors:
Somerville Legal – Plaintiff
McCabes Lawyers – Defendant

File Number(s):

2014/223271

Judgment (revised from ex tempore)

1. These proceedings are a representative action arising out of the interruption occasioned to European river cruises in May and June 2013 due to extensive flooding. The hearing of the lead plaintiff's case, and certain common questions of law and fact which are yet to be determined, is due to commence on 26 April 2016.

2. At a directions hearing before me on 5 November 2015, the plaintiff was granted leave to file in court a notice of motion seeking leave to amend his statement of claim. At that time it became clear that the defendant not only opposed leave to amend being granted, it also wished to agitate a number of matters that potentially affected the progress of the proceedings, including the topic of whether subgroup representation should be ordered and whether there should be an order for class closure (see Lam v Rolls Royce PLC (No 3) [2015] NSWSC 83 (“Lam No 3”)). Accordingly, the hearing of the notice of motion was adjourned to today.

3. This judgment deals with the application to amend, as well as the other issues that were raised. Before I address them, it is necessary to outline the structure and content of the existing amended statement of claim and the course of the proceedings to date.

Existing pleadings

4. The amended statement of claim (“ASOC”) defines the relevant group as follows:

“2.   The plaintiff and the persons he represents in these proceedings (the ‘Group Members’) are each person who:

(a)   had booked and paid for river cruises in Europe scheduled from 10 May 2013 to 14 June 2013 (hereafter the ‘relevant period’); or

(b)   had acquired the services of the defendant trading as ‘Scenic Tours’ and ‘Evergreen Tours’ concerning the operation of river cruises in Europe during the relevant period; and

(c) suffered loss or damage because of the conduct of the defendant in contravention of a provision of chapter 3 of the Australian Consumer Law; and

(d)   is not a legal practitioner or funder providing (respectively) services to the plaintiff and other group members, in order to assist them to recover the relief claimed in this proceeding.”

5. Paragraph 4 of the ASOC pleads the plaintiff and other group members acquired services of the defendant as “consumers” for the purposes of the relevant provisions of the Australian Consumer Law (in Schedule 2 of the Competition and Consumer Act 2010 (Cth)). The “services”, in broad terms, are particularised as the provision of benefits and privileges to facilitate travel on cruises along European rivers.

6. Paragraphs 6 to 9 of the ASOC plead that, by the operation of the Australian Consumer Law, the defendant, Scenic Tours Pty Limited (“Scenic”), proffered a guarantee that the services supplied would be rendered with due care and skill (the “care and skill guarantee”), would be reasonably fit for a particular purpose (the “purpose guarantee”), and might reasonably be expected to achieve the “result” of enabling tour members to enjoy travel and accommodation by cruises along European rivers (the “result guarantee”).

7. Paragraph 10 pleads that from about April and early May 2013 there was extensive flooding in Europe which caused rising river levels along the paths of the cruises arranged for by Scenic.

8. Paragraphs 11 and 12 of the ASOC are of significance to this application. It is necessary to set them out in full.

“11.   The defendant, through their officers, employees or agents, knew or should have known by about 3 May 2013 that the rising river levels would, or were likely to, substantially disrupt, for a period of approximately 6 weeks thereafter, the enjoyment of passengers scheduled to embark upon river cruises.

Particulars

Currently, the plaintiff and group members contend that such knowledge ought to have been known to the defendant as reasonable tour operators conducting business [in] Europe, being river cruises along European rivers in trade or commerce.

The actual knowledge of the defendant is a matter peculiarly within the knowledge of the defendant and further particulars will be supplied after discovery and, if necessary, the administration of interrogatories.

Contravention of consumer guarantees

12.   In contravention of the care and skill guarantee, the defendant failed to exercise due care in supplying the services by:

(a)   failing to make any, or any adequate, enquiry, prior to the relevant period, into the nature and extent of flooding and rising river levels in Europe by the severe rainfall in late April and early May 2013;

(b)   failing to determine, prior to the relevant period, that the nature and extent of flooding and rising river levels in Europe was such that by late April and early May 2013, it was inconceivable that the scheduled river cruises could proceed otherwise than without by substantial disruption or delay; or (alternatively):

(c)   unreasonable determining, prior to the relevant period, that the nature and extent of flooding and rising river levels in Europe were not so severe as to be likely to substantially impede the enjoyment of passengers scheduled to be embarked on river cruises [for] a period of approximately 6 weeks from about 3 May 2013;

(d)   failing, from about 3 May 2013, to cancel or delay the tours of the plaintiff and group members scheduled to occur in the relevant period, pending the receipt of information that would lead reasonable tour operators to conclude that the flooding and rising river levels had sufficiently abated so as to make it likely that the plaintiff and group members could substantially enjoy the benefit of travelling to the scheduled tour destinations by river cruise;

(e)   failing, prior to the departure of the plaintiff and group members, to cancel their tours and offer them the closest available tour or cruise departure (after forming a reasonable view as to when the river levels would recede so as to enable the cruises to resume along the rivers); and

(f)   failing, prior to the departure of the plaintiff and group members, to delay the tours until after such time when, having taken into account and having formed a reasonable view as to the river levels would recede so as to enable the cruises to resume along the rivers;

(g)   failing, from about 3 May 2013, to warn the plaintiff and group members, prior to their departure from their departing countries to commence their scheduled tours, that the weather and river conditions in Europe were such that it was unlikely that the plaintiff and group members would be able to enjoy, or substantially enjoy, the benefit of travelling to scheduled tour destinations by river cruise.”

9. Paragraphs 13 and 14 of the ASOC plead that Scenic contravened the purpose guarantee and the result guarantee, respectively, in that “prior to their departure for their respective tours” Scenic did not cancel or delay the tours, or otherwise offer alternative tours and cruises.

10. Paragraph 15 pleads that each of the plaintiff and the group members suffered loss and damage in that they embarked on the tours but did not experience or substantially experience travel and accommodation of cruises on European rivers. From the Bar Table, counsel for the plaintiff, Mr Abadee, sought to roughly encapsulate the group members' experience by saying that instead of participating in river cruises most of the group members experienced a tour that was conducted mainly by coach.

11. Paragraph 17 of the ASOC particularises the heads of damage claimed, and paragraph 18 identifies the common questions said to arise.

12. Amongst other matters, Scenic's amended defence filed 31 March 2015 seeks to rely on various terms and conditions of each group member's contract to avoid or limit its liability. In response, the plaintiff has filed a reply contending, inter alia, that some of the clauses relied on in the defence are void by the operation of s 64(1) of the Australian Consumer Law.

13. At this point four matters should be noted about the ASOC and the proceedings to date.

14. First, the ASOC refers to river cruises scheduled for the “relevant period”, being defined as the period 10 May 2013 to 14 June 2013, but it does not identify how many cruises, what routes and their specific departure dates.

15. On 5 November 2015 the Court was provided by counsel for Scenic, Mr Weinberger, with a schedule which identified fourteen 14-day cruises, with the first commencing on 19 May 2013 and the last commencing on 12 June 2013, as being the cruises that answered the description in the ASOC. The first of these cruises was from Chalon-sur-Saone to Avignon in France. The ninth cruise was from Bucharest to Budapest commencing 6 June 2013, and the other twelve cruises were from Budapest to Amsterdam or vice versa.

16. At the hearing of this motion it was confirmed that no claim was now being pressed in relation to the ninth cruise.

17. Before me the plaintiff contended that he had never received the schedule of cruises prior to it being handed up in court on 5 November 2015. Scenic contended that the plaintiff has, for a very long period, had the means available to him to ascertain the cruise details and, in particular, could have done so prior to formulating at least one of the iterations of his statement of claim. I will not attempt to resolve that debate. It suffices to state that to date the pleading has not descended to identify the particular cruises in question.

18. However, since at least July 2015 the plaintiff's lay evidence has been served. It includes an affidavit from the plaintiff and a number of affidavits from group members. The combined effect of that material is that the plaintiff has evidence from passengers on cruises one, four, eight, ten and twelve.

19. Second, it can be seen that the particulars to the existing paragraph 11 of the ASOC advert to the possibility that further particulars will be supplemented after discovery. I refer to this further below. However, at this point it suffices to note that discovery has now occurred. Following the undertaking of discovery, in August 2015 the plaintiff served on the defendant three lists of documents said to comprise its documentary case. At the hearing of this motion Mr Abadee confirmed that “subject to one document” that material comprises the totality of the plaintiff's case in support of the allegation in paragraph 11 of the ASOC.

20. Third, paragraph 11 of the ASOC asserts a state of knowledge on the part of Scenic about rising river levels and their likely consequences “by about 3 May 2015”. There is no obligation in the uniform Civil Procedure Rules to give particulars of knowledge (see UCPR 15.4(2)), however, the Court may order that be done (UCPR 15.10(2)).

21. Fourth, the temporal interaction between the existing paragraphs 11 and 12 of the ASOC is curious. Paragraph 11 is directed to a state of knowledge alleged to be possessed by Scenic by about 3 May 2013, whereas paragraph 12 concerns action or inaction on its part at a point later in time. Thus, subparagraphs 12(a) to (c) concern alleged failures by Scenic “prior to the relevant period”, being the period commencing on 10 May 2013. Subparagraphs (d) to (g) concern alleged failures by Scenic that potentially subsist up to the very point of departure of each cruise.

22. In short, whatever be the position of paragraph 11, existing paragraph 12 directs attention to Scenic's state of mind and decision-making on or after 3 May 2013 over a continuous period ending at the point of departure of the relevant cruise.

Proposed amendment to paragraph 11

23. The first substantive amendment sought by the plaintiff is to amend paragraph 11 so that instead of referring to a state of knowledge possessed “by about 3 May 2013” the pleading refers to a state of knowledge “from about 3 May 2013”. Accompanying this is an amendment to the particulars which cross-refers to some particulars set out in a letter dated 14 October 2015 sent from the plaintiff's solicitors to the defendant's solicitors, which is further supplemented in another letter dated 16 November 2015.

24. Mr Abadee submitted that this amendment was no more than a clarification of what is necessarily implicit in the existing ASOC, namely, that what is put in issue is the state of mind of Scenic and its decision-making processes throughout the period of May and early June 2013.

25. In his written and oral submissions Mr Weinberger put three related submissions in opposition to the amendment. The first is that the amendment amounts to a significant change in the pleaded case. The second is that, properly analysed, this amendment reveals that, overall, the pleading fails to plead sufficient facts to mount a clear case on behalf of each group member against Scenic and specifically fails to identify relevant facts concerning why each particular cruise should have been cancelled. Third, it was submitted that the particulars that have been provided are inadequate such that the amendment should not be allowed.

26. It follows from what I have already stated that I do not accept that the amendment raises a substantially new case. In my view, when the existing paragraph 11 is read in context with existing paragraph 12, it was already the case that the state of knowledge and alleged inaction of Scenic throughout May and early June 2013 was clearly in issue.

27. In relation to the second matter raised by Mr Weinberger, as a matter of strict pleading the amended statement of claim and the proposed further amended statement of claim plead a cause of action on behalf of all group members. The amended version at paragraphs 11 and 12 identifies a case that, in broad terms, alleges that at some point in time up to the date of each relevant cruise ship's departure the actual or imputed knowledge of flooding and its likely effects held by Scenic was such that it should have cancelled the relevant tour in order to comply with the contractual obligations implied by the Australian Consumer Law. That is sufficient (see King v GIO Holdings Limited [2000] FCA 627; 100 FCR 209 at [30]).

28. One factual issue at the core of all of this will be Scenic's state of knowledge about raised river levels and their likely effect on tours throughout each day in May and early June 2013. It may, in the end result be that the plaintiff will not establish the requisite knowledge in relation to the period prior to the departure of a particular cruise or, indeed, all cruises. However, that matter does not affect the status of the proceedings as a representative action, the commonality of the issues raised, or the adequacy of the pleading.

29. As noted, the third matter raised by Mr Weinberger concerned the adequacy of the particulars to paragraph 11. The particulars that have been provided in the letters referred to identify certain specific events that occurred mostly in the latter part of May 2013 and early June 2013 as a basis for the allegation of actual or imputed knowledge. One difficulty with those matters is that they do not constitute particulars of the state of knowledge that preceded their happening. However, the particulars also include the assertion that “adverse weather conditions over the past few months up to the end of May 2013 had disrupted all forms of navigation and many European waterways”. At a level of generality, that particular is capable of supporting the allegation about actual or imputed knowledge from May 2013. Nevertheless, Mr Weinberger contended it was not sufficient.

30. I have already referred to the relevant provisions of the rules concerning the provision of particulars of knowledge. Most significantly, I have also noted that the entirety of the plaintiff's case on this issue is documentary and that all bar one of the documents has been served on the defendants some months ago. As I have stated, the ultimate issue in this respect is the state of Scenic's knowledge of river flooding and its likely impact upon cruises from time to time.

31. The function of particulars is to enable a party to know the case they have to meet. In circumstances where perhaps less than adequate particulars have been provided, but all the documents upon which the relevant finding of knowledge is sought have been served, I consider that Scenic is certainly in a position to know the case it has to meet.

32. Otherwise, I accept that allowing the amendment will necessitate Scenic be given some further time to prepare its evidence. However, beyond that and the points I have already dealt with, no other matter affecting the exercise of the discretion to allow an amendment was raised in opposition to the grant of leave to amend. It follows that I will allow this amendment.

Unconscionable conduct and unjust provisions in travel contracts

33. The other set of substantive amendments proposed by the plaintiff seeks to plead that the conduct of Scenic in the manner it bound tour members to become liable to pay cancellation fees was unconscionable within the meaning of s 21 of the Australian Consumer Law, and that, otherwise, certain provisions relied on by Scenic in its defence were unjust provisions within the meaning of ss 7 and 9 of the Contracts Review Act 1980. It is also pleaded that certain terms and conditions relied on by Scenic are unfair terms within the meaning of s 24 of the Australian Consumer Law and should be voided pursuant to s 23.

33. An earlier iteration of this aspect of the pleading was the subject of detailed submissions by Mr Weinberger. The strength of those submissions was such as to lead to Mr Abadee preparing a further version which addressed many of the points that were made such that only two complaints about this aspect of the pleading remain. The first concerned proposed 17G, which makes a similar allegation to the amendment to paragraph 11 and also adopts the particulars to paragraph 11. Mr Weinberger raised the same objections to this paragraph which he raised in relation to paragraph 11, which I have already addressed and rejected.

34. The second objection concerned the meaning of part of the particulars to proposed paragraph 17I(a)(ii) which alleged that:

“There was also undue influence or pressure in circumstances where, if group members objected to the content of the terms and conditions, their only practical choice was to cancel the tour, which might, depending upon the timing of such decision, occasion payment of a cancellation fee or the entire tour price.”

36. Mr Weinberger raised a query as to the precise meaning of this aspect of the particulars. Mr Abadee explained that this was a reference to the alleged fact that in booking a cruise group members were given a large brochure with only a couple of pages at the end outlining the contractual terms, which were in an especially small font. He alleged that it was only after tour members had agreed to those terms that they received a copy of the terms in larger font, and it was most likely that only after they did so did they become aware of the cancellation fee arrangements. The essence of the complaint is that by that point in time they were already contractually bound by the arrangements in respect of cancellation fees.

37. To clarify this the plaintiff will need to add the words “after they were contractually bound” after the words “terms and conditions” in the above extract. In my view, once those words are added the gravamen of the allegation becomes clear and the objection falls away.

38. These being the only substantive objections to this part of the pleading, it follows that leave to amend to raise these claims will be granted.

Subgroups

39. Mr Weinberger submitted, in light of what is at least now known about the cruises the subject of the proceedings, the Court should now establish subgroups and, presumably, subgroup representatives in respect of each such cruise. His argument is encapsulated by paragraphs 36 and 37 of his written submissions as follows:

“The requirement for subgroups arises in circumstances where two or more group members have a particular question in common which is not common to the other group members. Questions common to members who embarked on cruise no. 1 on 19.05.2013 cannot be relevant to group members who embarked on cruise number no. 14 on 12.06.2013. This example can easily be multiplied.

Further, questions common to group members who embarked on cruise no. 4 on 27.05.2013 (Amsterdam to Budapest) cannot be relevant (or entirely relevant) to group members who embarked on cruise no 5 on the same day (Budapest to Amsterdam). This is because, and by way of example only, it may have been entirely reasonable to commence one of the cruises with the expectation based on weather forecasts and other information that the river level at or in close proximity to the point of disembarkation will subside when reached some 12 or 13 days later.” (emphasis added)

40. The power to establish subgroups and appoint subgroup representatives is conferred by s 168 of the Civil Procedure Act which provides:

“168 Determination of questions where not all common

(1)   If it appears to the Court that determination of the question or questions common to all group members will not finally determine the claims of all group members, the Court may give directions in relation to the determination of the remaining questions.

(2)   In the case of questions common to the claims of some only of the group members, the directions given by the Court may include directions establishing a sub-group consisting of those group members and appointing a person to be the sub-group representative party on behalf of the sub-group members.”

41. Contrary to the first part of Mr Weinberger's submissions, it is self-evident from s 168 that there is never a “requirement” to appoint subgroups, only a discretion. Moreover, it is a discretion that is to be exercised having regard to the overall objectives of Part 10 of the CPA and the CPA generally.

42. Further, an analogous practice to establishing subgroups and appointing subgroup representatives is to use sample group members in class actions. The utility of that approach was described by Forrest J in Matthews v SPI Electricity Pty Limited & Ors (Ruling No 5) [2012] VSC 66; 35 VR 615 (“Matthews”) at [4] as follows:

“4   In practice, notwithstanding that there may be a commonality in the alleged cause of the harm occasioned to the group members, a trial focusing solely on the representative plaintiff’s claim may not cover the claims of all group members. To address this problem, a practice has developed to permit other group members to give evidence at trial as to relevant facts concerning his or her claim. This evidence then enables the court to make findings and give judgment in relation to those other claims, which enables binding determinations to be made in respect of most, if not all, group members.”

43. In Matthews Forrest J identified two potential practical differences between appointing subgroup representatives, on the one hand, and using sample group members, on the other, namely that with the latter the Court would not necessarily proceed to determine the entirety of their claims (Matthews at [20] to [32]); and that the subgroup representative parties may be liable for costs whereas sample group members may not be so liable (Matthews at [33] to [44]).

44. The suggested utility of subgroups in this case is said to be that it would facilitate the determination of so much of the action as relates to each particular cruise. I agree that there will have to be determinations in relation to each particular cruise, but I do not agree that the establishment of subgroups is required, or that further sample group members are required. The state of knowledge of Scenic at any point in time and its obligations in relation to a particular cruise is a matter that can be determined in the proceedings without the necessity to adduce evidence from a particular passenger on that cruise. In those circumstances, and given the inconvenience that would now be occasioned by proceeding to establish subgroups, I decline to do so.

45. I note three further matters at this point. First, I reject Mr Weinberger's contention that there are no questions common to group members who travelled on different cruises. Leaving aside the significant number of common legal questions, there are significant common questions of fact about Scenic's actual or imputed knowledge about the state of flooding from time to time throughout May to June 2013. That state of knowledge as it progressed over that period will be common to all group members.

46. Second, as I apprehend it, underneath this complaint is a concern about the lack of clarity about what will be determined at the hearing on 26 April 2016. To be clear, the parties should now undertake their preparations on the basis that what will be litigated will include the entirety of the plaintiff's claim. Further, the parties should also understand that [4] to [14] of the Further Amended Statement of Claim will be litigated so far as they relate to all group members and, in particular, all cruises in the relevant period. Otherwise, the balance of the matters to be litigated should be the subject of discussions between the parties. In that regard I note that [1] to [6] in the plaintiff's document described as “Plaintiff's Identified Issues to Be Determined At Initial Trial on 26 April 2016” appear to raise issues that are properly common to the plaintiff and all group members. Failing agreement, and subject to what follows, the parties can agitate any further dispute about what is to be determined before Garling J on 12 February 2016.

47. Third, in considering the form of the proposed common questions, the observations of Gillard J in Johnson Tiles Pty Limited v Esso Australia Pty Limited (No 3) [2001] VSC 372 at [81] are apposite, namely:

“I propose to state questions, which will be considered and determined at the hearing. The questions are general, are not to be the subject of construction arguments, are to be applied in a common sense way, and will be subject to change if the circumstances demand it. But the circumstances would have to be exceptional. As I have said, and I repeat, one must approach a group proceeding in a practical way and decide as many common questions of law and fact as possible.”

48. It follows from those observations that the identification of the common question to be determined at the hearing on 26 April 2016 will not act as some form of substitute for the pleadings, will not be taken to be an indication that any particular legal test implicit in the relevant question is the correct one, and will not preclude any party from submitting that a particular question cannot be answered at a level of generality above the specific facts of any particular claim or facts concerning a group member that is heard and determined at that hearing.

Class closure

49. This matter was due to be mediated around this time but apparently, due to the disagreements that have been addressed by this judgment, the mediation has not occurred. As I understand it, the parties are attempting to mediate in early 2016. To facilitate the mediation Scenic applied for an order to give effect to so-called “Class closure”. In Matthews v SPI Electricity Pty Ltd [2013] VSC 17 at [23] Forrest J described this process as follows:

“Class closure is a different concept to that of a closed class. This expression means, as I understand it, that a Court may require group members to identify themselves by a certain point in time as having an interest in any judgment or proposed settlement. Failing a declaration of such interest (normally achieved by registering with the court or a firm of solicitors by a certain date) any subsisting entitlement to damages of the group members relating to the claim may be extinguished.”

50. The advantage to a defendant in obtaining an order for class closure is that it sometimes enables the defendant to ascertain the scope of their potential exposure and thus consider their position in relation to settlement accordingly (see Lam (No 3) at [20]). Despite this, for the following four reasons, I decline to make any orders for class closure.

51. First, at this relatively late stage of the proceedings as well as the late stage of the year, I consider it would cause undue cost and inconvenience to require the plaintiff and group members to embark upon the process of registration with the consequential necessity to provide certain basic information in relation to the extent of their claims.

52. Second, I was advised that the class consists of approximately 1,100 persons, about 500 of whom have retained the plaintiff's solicitors. It seems to me that, from a pool of 500, there is the means for the defendant to obtain some information sufficient to identify their potential exposure.

53. Third, in broad terms, the heads of damages that are claimed are largely a claim for the difference in value between the amount paid for a tour and the value of the tour that each group member received (see s 267(3)(b) of the Australian Consumer Law) as well as an amount for distress and disappointment. The former head of damage can be calculated without the group members coming forward at this stage. The scope of the latter can, in my view, also be reasonably ascertained without the necessity for those who actually claim distress and disappointment to identify themselves. By these means I consider the potential exposure of the defendant can be identified without the need to require the members of a class who wish to pursue a claim to come forward and register.

54. This analysis can be contrasted with the position in Lam where the suffering of a recognised psychiatric injury was a prerequisite to any group member having a claim for recovery.

55. Fourth, to the extent that there is any relevant remaining uncertainty about the level of potential exposure, a sophisticated defendant can accommodate that by the forms of the offer they make, including, for example, by making a capped offer.

56. Accordingly, I decline to make an order for class closure.

Other matters

57. There was some debate about Scenic's compliance with a notice to produce. In view of the exchange that occurred between counsel, it is not necessary for me to decide any matter concerning that at this point. Otherwise I will shortly make orders dealing with the amendments and then I will hear the parties concerning orders for an amended defence, extending the time for the defendant to file its evidence, as well as costs. Otherwise, I note the matter is listed for further directions before Garling J on 12 February 2016.

58. Accordingly, the Court:

1. Grants leave to the plaintiff to file and serve within seven days a Further Amended Statement of Claim in the form attached to the submissions of counsel for the plaintiff dated 24 November 2015, and further amended to:

1. exclude those persons who booked and travelled on the cruise from Bucharest to Budapest departing on 6 June 2013 from the description of the group in paragraph 2;

2. by the substitution of ‘22(1)(a) and (d)’ in the opening words of the particulars to proposed [17I(a)] for “21(1)(a) and (d)”;

3. by the inclusion of the words ‘after they were contractually bound’, after the phrase ‘terms and conditions’, that is second appearing in particular (ii) to the particulars to [17I(a)].

[Discussion re further orders.]

59. The Court orders:

1. The defendant to file any amended defence on or before 11 December 2015.

2. The plaintiff to file any amended reply by 18 December 2015.

3. The time for the defendant to file its evidence be extended to 29 January 2016.

4. The plaintiff to file and serve a revised proposed set of common questions on or before 18 December 2015.

5. The defendant to file and serve a revised version of proposed set of common questions by 29 January 2016.

6. Any previous order in relation to mediation be set aside and instead order mediation to occur by 10 March 2016.

7. The plaintiff's notice to produce to the defendant be stood over to 12 February 2016.

[Argument as to costs.]

60. Mr Weinberger seeks the costs thrown away by reason of the amendments that have been granted which he contends would include the costs occasioned by the defendant having had to meet a case in respect of cruise 9 which is no longer pursued. I do not think there is any basis on which that aspect of his application can be resisted.

61. Accordingly, the Court orders:

1. The plaintiff pay the costs thrown away reason of the amendments to the Amended Statement of Claim, including, but not restricted to, the costs that have been incurred to date in meeting so much of the case that concerns the ninth cruise.

62. Otherwise, Mr Abadee sought the costs of the motion, including the costs of today. Mr Abadee sought those costs on the basis that, of the various contested issues, his client was successful and in particular, his client was successful in overcoming the persistent resistance of Scenic to the proposed amendment to [11] of the ASOC, the somewhat broader attack made on the pleadings in Mr Weinberger's written submissions, the application that groups be appointed and orders for class closure.

63. Mr Abadee pointed to the fact that his instructing solicitor had to prepare an affidavit which, to a significant degree, addressed the question of class closure.

64. In response, Mr Weinberger pointed out that it was only by the preparation of his detailed submissions that the various objections raised to the unconscionability and associated claims were adequately addressed.

65. I think that, overall from the time the motion seeking leave to amend was filed, the plaintiff has certainly had larger success than the defendant, notwithstanding that it was seeking an indulgence. Allowing for the fact that a significant number of the objections to the unconscionability case were ultimately either conceded or addressed, I consider there must be an order which reflects the success that the plaintiff has had, including the costs of preparing his solicitor's affidavit. I think that is best reflected by ordering the defendant to pay half the costs of the plaintiff's notice of motion.

66. Accordingly, the Court orders that:

1. (10)   The defendant pay half the costs of the plaintiff’s notice of motion filed 5 November 2015.

**********

Decision last updated: 01 December 2015