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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] NSWSC 1777
Decision Date: 26 November 2015

CaseChat Overview and Summary

The matter before the court involved an application by Scenic Tours Pty Ltd to amend its Statement of Claim in a class action proceeding. The plaintiffs in the class action sought damages for breach of Australian Consumer Law and misleading and deceptive conduct. The court was required to decide whether the proposed amendments reflected a new case, whether the allegation of knowledge was adequately particularised, whether subgroups should be appointed, and whether orders for "class closure" should be made.

The court found that the proposed amendments did reflect a new case, as they introduced a novel cause of action based on the concept of "joint and several liability." The court also found that the allegation of knowledge was adequately particularised, as the plaintiffs had provided sufficient detail to allow the defendants to respond to the allegations. The court declined to appoint subgroups, finding that the proposed subgroups were not sufficiently distinct to warrant separate treatment. Finally, the court made orders for "class closure," meaning that the class action would proceed with the existing plaintiffs and no further plaintiffs would be added to the class.

The court's orders were that the amended Statement of Claim be allowed, that the allegation of knowledge be deemed adequately particularised, that no subgroups be appointed, and that orders for "class closure" be made. These orders mean that the class action will proceed with the existing plaintiffs, and no further plaintiffs will be added to the class. The defendants will now need to prepare to defend the novel cause of action based on "joint and several liability," while also defending the existing claims of misleading and deceptive conduct and breach of Australian Consumer Law.

Orders