Moore v Scenic Tours Pty Ltd (No 2)

[2017] NSWSC 733

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:	Moore v Scenic Tours Pty Limited (No.2) [2017] NSWSC 733
Hearing dates:	26, 27, 28 April 2016,11, 12, 13 May 2016
Date of orders:	31 August 2017
Decision date:	31 August 2017
Jurisdiction:	Common Law
Before:	Garling J
Decision:	See [946]
Catchwords:	CONSUMER LAW – all-inclusive five-star luxury cruise along European rivers – where cruise substantially disrupted by flooding – whether breach of consumer guarantees CONSUMER LAW – meaning of “services” in particular factual context – whether breach a result of a cause independent of human control STATUTORY CONSTRUCTION –– whether Civil Liability Act (‘CLA’) picked up by s 80 Judiciary Act DAMAGES – compensation for reduction in value – assessment – whether amount recovered through insurance policy to be subtracted from total of compensation awardable STATUTORY CONSTRUCTION – damages for distress and disappointment – whether Pt 2 CLA applied by s 275 Australian Consumer Law – whether damages “personal injury” under Pt 2 CLA – whether damages meet Pt 2 CLA threshold – whether CLA operates extra-territorially DAMAGES – assessment – damages for distress and disappointment CONTRACTS – construction – whether terms and conditions permitted significant variation of itinerary
Legislation Cited:	Australian Consumer Law Civil Liability Act 2002 Civil Procedure Act 2009 Competition and Consumer Act 2010 (Cth) Contracts Review Act 1980 Judiciary Act 1903 (Cth) Social Security Act 1991 (Cth) Supreme Court Act 1970 The Package Travel, Package Holidays and Package Tours Regulations 1992 (UK) Trade Practices Act 1971 (Cth)
Cases Cited:	Adamson v NSW Rugby League Ltd (1991) 31 FCR 242 Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420 Alameddine v Glenworth Valley Horse Riding Pty Ltd [2015] NSWCA 219 Baltic Shipping Co v Dillon [1993] HCA 4; (1993) 176 CLR 344 Benic v State of NSW [2010] NSWSC 1039 Bradburn v Great Western Railway Co (1874) LR 10 Exch.1 Comalco Aluminium Ltd v Mogal Freight Services Pty Ltd [1993] FCA 96; (1993) 113 ALR 677 CPA Australia Ltd v Storai [2015] VSC 442; (2015) 299 FLR 288 Fairall v Hobbs [2017] NSWCA 82 Flight Centre Ltd t/as Infinity Holidays v Janice Louw [2011] NSWSC 132 Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151 Indico Holdings Pty Ltd v TNT Australia Pty Ltd (1990) 41 NSWLR 281 Insight Vacations Pty Ltd v Young [2010] NSWCA 137 Insight Vacations Pty Ltd v Young [2011] HCA 16; (2011) 243 CLR 149 IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 Jarvis v Swan Tours Ltd [1972] EWCA Civ 8; [1973] QB 233 John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 203 CLR 503 Jumbunna Coal Mine, NL v Victorian Coal Miners’ Association (1908) 6 CLR 309 Kumagai Gumi Co Ltd v Commissioner of Taxation [1999] FCA 235; (1999) 90 FCR 274 Lipohar v The Queen [1999] HCA 65; (1999) 200 CLR 485 Moran v McMahon (1985) 3 NSWLR 700 Motorcycling Events Group Australia Pty Ltd v Kelly [2013] NSWCA 361; (2013) 86 NSWLR 55 National Insurance Company of New Zealand Ltd v Espagne [1961] HCA 15; (1961) 105 CLR 569 Obeid v Australian Competition and Consumer Commission [2014] FCAFC 155; (2014) 226 FCR 471 Peterson v Merck Sharpe & Dohme (Aust) Pty Ltd [2010] FCA 180 Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; (1968) 119 CLR 118 Redding v Lee [1983] HCA 16; (1983) 151 CLR 117 Regie National des Usines Renault SA v Zhang [2002] HCA 10; (2002) 210 CLR 491 Rogers v Nationwide News Ltd [2003] HCA 52; (2003) 216 CLR 327 Shoalhaven City Council v Pender [2013] NSWCA 210 Trade Practices Commission v Legion Cabs (Trading) Co-Operative Society Ltd [1978] FCA 47; (1978) 35 FLR 372 Union Steamship Co of Australia Pty Ltd v King [1988] HCA 55; (1988) 166 CLR 1 Uniting Church in Australia Property Trust v Miller [2015] NSWCA 320; (2015) 91 NSWLR 752 Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 Young v Insight Vacations Pty Ltd [2009] NSWDC 122
Texts Cited:	Not Applicable
Category:	Procedural and other rulings
Parties:	David Moore (P) Scenic Tours Pty Limited (D)
Representation:	Counsel: A Abadee (P) G McNally SC (26, 27 April 2016) / D S Weinberger / A Jordan (11, 12 May 2016) (D)   Solicitors: Somerville Legal Pty Ltd (P) McCabes Lawyers (D)
File Number(s):	2014/223271
Publication restriction:	Not Applicable

TABLE OF CONTENTS

Judgment

Table of Cruises

The Scenic Group

Senior Members of Scenic and Associated Companies

Plaintiff’s Claim

The Case for the Defendant

Shape of the Hearing

A Late Amendment

Mr Moore’s Experience

Mr Moore’s Agreement with Scenic

Scenic’s Knowledge of River Levels

Amsterdam to Budapest Intended Itinerary

Budapest to Amsterdam Cruise

Consumer Guarantees

Scenic’s Brochure

Terms and Conditions

Services

The Guarantees

The Purpose Guarantee: s 61(1) of the ACL

The Result Guarantee: s 61(2) of the ACL

Due Care and Skill Guarantee: s 60 of the ACL

Defences to the Guarantees

Application of Purpose and Due Care and Skill Guarantees to the Cruises

Cruise 1: South of France River Cruise commencing 19 May 2013

The Cruise

Purpose Guarantee

Due Care and Skill Guarantee

Cruise 2: Budapest to Amsterdam departing 20 May 2013

The Cruise

Purpose Guarantee

Due Care and Skill Guarantee

Cruise 3: Amsterdam to Budapest departing 25 May 2013

The Cruise

Purpose Guarantee

Due Care and Skill Guarantee

Cruise 4: Amsterdam to Budapest departing 27 May 2013

The Cruise

Purpose Guarantee

Due Care and Skill Guarantee

Cruise 5: Budapest to Amsterdam departing 27 May 2013

The Cruise

Purpose Guarantee

Due Care and Skill Guarantee

Cruise 6: Amsterdam to Budapest departing 29 May 2013

The Cruise

Purpose Guarantee

Due Care and Skill Guarantee

Cruise 7: Budapest to Amsterdam departing 29 May 2013

The Cruise

Purpose Guarantee

Due Care and Skill Guarantee

Cruise 8: Amsterdam to Budapest departing 3 June 2013

The Cruise

Purpose Guarantee Analysis

Due Care and Skill Guarantee

Cruise 9: Budapest to Amsterdam departing 8 June 2013

The Cruise

Purpose Guarantee

Due Care and Skill Guarantee

Cruise 10: Amsterdam to Budapest departing 10 June 2013

The Cruise

Purpose Guarantee Analysis

Due Care and Skill Guarantee

Cruise 11: Budapest to Amsterdam departing 10 June 2013

The Cruise

Purpose Guarantee

Due Care and Skill Guarantee

Cruise 12: Amsterdam to Budapest departing 12 June 2013

The Cruise

Purpose Guarantee

Due Care and Skill Guarantee

Cruise 13: Budapest to Amsterdam departing 12 June 2013

The Cruise

Purpose Guarantee

Due Care and Skill Guarantee

Application of the Result Guarantee to the Cruises

Damages

Compensation for Reduction in Value

Claim for Damages Pursuant to s 267(4) of the ACL

Extra-territoriality

Statutory Context

Assessment of Damages

Restitutionary Judgment for Money Had and Received

Summary

Common Questions

Orders

Judgment

1. The plaintiff, Mr David Moore, a school teacher, brings proceedings claiming compensation and damages, together with alternative relief arising out of a European river cruise that he and his wife (Janet Howell) took during June 2013.

2. Mr Moore’s tour, which included an initial stay in Paris for a few nights, was booked 18 months prior to its departure date and paid for, in full, about 12 months before the cruise commenced. It was timed to take place during a period of long service leave taken by Mr Moore and was much anticipated. The long awaited cruise was intended to depart from Amsterdam, travel along the Rhine River, the Main River, the Main/Danube Canal and the Danube River to Budapest.

3. The defendant, Scenic Tours Pty Ltd (“Scenic”) provided this tour, either by itself or its associated entities. In its brochure, which Mr Moore read, the founder and managing director of Scenic, Mr Glen Moroney, invited Mr Moore and other guests to join Scenic for “… a once in a lifetime cruise along the grand waterways of Europe” during which, whilst on board a Scenic ship, they would “ … be immersed in all inclusive luxury”. Mr Moroney assured readers of Scenic’s brochure that their entire journey would be “truly unforgettable”.

4. Mr Moore claims that his journey was, on the contrary, one which he would rather forget.

5. In the events which happened, Mr Moore claims that rather than experiencing a once-in-a-lifetime luxury river cruise along the promised waterways on a Scenic ship, his experience was one of being shuffled around Europe, largely by coach, for a great part of the trip and changing ships on two occasions so that by the time he disembarked in Budapest, he had experienced three different Scenic ships and that far from his cruise being one where he was immersed in all-inclusive luxury, he experienced something entirely different.

6. The disruptions to the planned itinerary of Mr Moore’s cruise were caused by the decisions made by Scenic when confronted with high water levels on the rivers and extensive rainfall which occurred in Europe during May and June 2013. Many towns and cities in Europe, particularly those along the identified waterways, were flooded. Locks along the rivers were either damaged or inoperative. Ships were unable to pass under bridges crossing the rivers and some docking facilities could not be used and had been washed away.

7. Mr Moore brings a representative proceeding in this Court on behalf of a large number of his fellow travellers. He claims against Scenic that, with respect to 13 cruises, it knew that when he (and his fellow group members) booked their cruises, they did so because they wished to experience and enjoy a luxury five-star experience of a river cruise, in accordance with the selected itinerary which would include highlighted events and destinations. Scenic does not entirely admit that it knew that this was what the plaintiff and his group members wished to experience.

8. Mr Moore claims on his own behalf, and on behalf of the group members, that the services provided by the defendant did not fulfil this purpose, and did not provide the desired result. Accordingly, Mr Moore claims principal relief in this Court by way of damages and compensation.

9. Scenic contests the proposition that it did not provide the European river cruises in accordance with its statutory and contractual obligations, and contests Mr Moore’s entitlement to any relief.

10. It will be appropriate to describe in more detail the cases for each of Mr Moore and Scenic. However, it is necessary to note that as this is a representative proceeding upon which the Court is embarked, the Court will in this judgment deal with the whole of the plaintiff’s claim, and the determination of a number of questions which the parties agree are likely to arise with respect to the claims of the group members. Whether those questions do arise, and if so in respect of which group members, is part of the ultimate determination.

11. Included in the representative action are cruises which Mr Moore himself did not take, but which other group members did take. Twelve of the cruises were along the waterways which I have described above. Some of them went in an easterly direction from Amsterdam to Budapest, others travelled in a westerly direction from Budapest to Amsterdam.

12. One cruise was different. That was a cruise in the south of France which was intended to depart on 19 May 2013 and travel along the Saône River to Lyon and from there along the Rhône River to Arles.

13. The Court has been asked to, and will, make findings about what happened on each of these cruises.

Table of Cruises

Cruise Number	Departure Date	Route	Scenic Code
1.	19 May 2013	Saone/Rhone Rivers, France	FRCR   190513.1
2.	20 May 2013	Budapest to Amsterdam	STC    200513.2
3.	25 May 2013	Amsterdam to Budapest	EGFC   250513.1
4.	27 May 2013	Amsterdam to Budapest	STC   270513.1
5.	27 May 2013	Budapest to Amsterdam	STC   270513.2
6.	29 May 2013	Amsterdam to Budapest	STC   290513.1
7.	29 May 2013	Budapest to Amsterdam	STC   290513.2
8.	3 June 2013	Amsterdam to Budapest	STC   030613.1
9.	8 June 2013	Budapest to Amsterdam	EGRC   080613.2
10.	10 June 2013	Amsterdam to Budapest	STC   100613.1
11.	10 June 2013	Budapest to Amsterdam	STC   100613.2
12.	12 June 2013	Amsterdam to Budapest	STC   120613.1
13.	12 June 2013	Budapest to Amsterdam	STC   120613.2

14. As can be seen from the Table of Cruises, for the ships sailing from Amsterdam to Budapest the numerical extension “.1” was used. For ships sailing in the opposite direction, the numerical extension “.2” was used. Cruises 3 and 9 were conducted by Evergreen Tours Pty Ltd (“Evergreen”) which is part of the Scenic Group.

15. In this judgment it will be convenient to refer to the cruises by their allocated cruise number, which is chronologically sequenced by departure date.

The Scenic Group

16. The evidence and documents which were tendered identified a number of individuals and corporate entities which were closely associated in the provision of services by Scenic to the plaintiff and group members. They can all be loosely and for convenience described as forming part of the “Scenic Group”.

17. As just mentioned, Evergreen was one such corporate entity. It published promotional material which was very similar in composition and style, and content, to that published by Scenic. It operated its tours on ships, the names of which all commenced with the title “Amadeus” rather than the title “Scenic”. Evergreen operated from the same offices in Newcastle as did Scenic. As the internal correspondence showed, Scenic and Evergreen shared an Operations Manager, Ms Scoular, and were in all respects regarded as the same organisation. On the back page of its brochure, Evergreen described itself as “…a division of Scenic Tours”. No submission was made to the Court that Scenic and Evergreen should be regarded as separate or distinct entities for any purpose.

18. Scenic Tours Europe AG (“Scenic Europe”) is another company identified in the documentary evidence. Mr Lucas Sandmeier was its Managing Director. It appears that Scenic Europe was based in Zug in Switzerland. It seems that it was responsible for managing all aspects of Scenic cruises in Europe. There were considerable internal emails and correspondence between Scenic Europe and Scenic. Employees of both Scenic and Scenic Europe used the same email addresses. After their individual names, their email addresses were all “…@scenictours.com”. Clearly, they were both closely associated and worked jointly in the provision of services to booked passengers both before they embarked in their cruise and during their cruise.

19. Although there was tendered in evidence a formal Services Agreement between Scenic and Scenic Europe, and Scenic pleaded that Scenic Europe was an “independent contractor” Scenic did not ever suggest or submit that it could not be held liable for the conduct of Scenic Europe. There was no evidence as to whether these companies were in common ownership, or what their respective governance structures were. However, the plainest inference arises from all of the evidence in the case that these companies were operating jointly and were closely associated. Counsel for Scenic did not submit otherwise.

20. In light of that approach, it is appropriate to regard Scenic Europe as a part of Scenic’s operations, and as an integral part in the supply by Scenic of services to passengers. One example of the closeness with which these companies operated was that one of the agreements tendered in evidence refers to the operations of Scenic, Scenic Europe and Evergreen. In 2013, Scenic Europe was the entity which chartered the Amadeus Silver, the ship which operated some of the Evergreen tours between Amsterdam and Budapest. There was no separate agreement tendered in evidence between Scenic Europe and Evergreen and/or Scenic dealing with the basis of that charter and their respective rights and responsibilities.

21. The documentary evidence recorded the existence of a number of other companies associated with the ownership of the Scenic fleet of ships. Scenic River Cruise AG, Riverland Cruises AG, Scenic Crystal AG and Scenic Cruises Holdings AG were all Swiss-based companies, of which Lucas Sandmeier was the Managing Director which owned or was involved with the provision of the shipping fleet of Scenic ships which operated the relevant cruises under the Maltese flag. The particular role which any of these companies played in the provision of services by Scenic was not identified in the evidence. Interestingly, in respect of a particular services agreement with a third party, into which Scenic River Cruises AG and Riverland Cruises AG entered, Mr Glen Moroney, who elsewhere identified himself as the Founder and Managing Director of Scenic, was nominated as the contact person for any contractual dispute.

22. Moreover, in its Defence, Scenic pleaded that the river cruises were provided by independent contractors, namely Scenic Tours Europe AG and Dr. W. Leuftner Reisen GmbH trading as Luftner Cruises AG. I have dealt with the former entity above. With regards to the latter, Luftner Cruises AG, no submission was made in argument or in writing by Scenic that Scenic should not be held liable for the actions of Luftner Cruises AG, or any other contractor which was associated with Scenic’s service provision.

23. Accordingly, I have concluded that it is appropriate to also regard Luftner Cruises AG as a part of Scenic’s operations and as integral to the delivery of the services to passengers on Scenic’s river cruises.

24. It is unnecessary to refer to any of these companies any further. At some later point in time, probably by about June 2010, it seems that Scenic Europe had become the owners of the Scenic ship fleet.

25. There were many individuals whose names featured in the internal emails and correspondence, and in events which provided services to intending and booked passengers. They were writing on letterhead or over the signature block of various of the companies which I have earlier described. Principally, these companies were Scenic, Evergreen and Scenic Europe. It is convenient to set out below their names, job titles and company, so that when referred to later, it is unnecessary to repeat that material. In the absence of any direct evidence specifically outlining actual roles, descriptions and responsibilities, the material below is drawn from the tendered documents:

Senior Members of Scenic and Associated Companies

Name	Role\Position
Mr Glen Moroney	Founder and Managing Director of Scenic Tours
Mr Justin Brown	General Manager Operations and Administration of Scenic Tours
Ms Donna Willis	Customer Liaison Manager for Scenic Tours
Ms Kim Scoular	Operations Manager, Scenic and Evergreen Tours
Mr Angus Crichton	General Manager of Evergreen
Mr Lucas Sandmeier	Managing Director of Scenic Tours Europe AG
Ms Melanie Koch	Operations Supervisor Cruises and Extensions Scenic Europe
Ms Alexandra Graeff	Operations Manager of Scenic Europe
Ms Emma Lindsay	Operations Manager – UK Scenic Tours
Mr Leo Beilmann	Operations Manager of AGIS, a French-based Nautical Agency

Plaintiff’s Claim

26. The plaintiff’s claim is contained in the Third Further Amended Statement of Claim (“3rd FASC”), ultimately filed in Court on 12 May 2016.

27. The first and principal claim is an order for compensation pursuant to s 267(3) and/or s 267(4) of the Australian Consumer Law (“ACL”). A second and alternative claim is for an order for personal injury damages pursuant to Part VI B of the Competition and Consumer Act 2010 (Cth) (“Competition Act”). This second claim was ultimately not pursued. In the alternative to both of those claims, the plaintiff makes a claim for restitution.

28. There are six other prayers for relief in the 3rd FASC which deal with the capacity of the defendant to enforce various terms and conditions of the contract entered into between Scenic and the plaintiff. These claims in part depend upon the matters pleaded by Scenic in its defence. It will be convenient to discuss these claims in due course.

26. It is clear from the pleading and submissions that the plaintiff’s case is a narrow one. He does not sue for damages for the tort of negligence, nor for damages for breach of contract. His claim does not rely upon a breach of the statutory prohibition on conduct which is misleading or deceptive, or likely to mislead or deceive: s 18 of the ACL. Rather, he sues only on the basis of a breach of one or more of the statutory guarantees provided in ss 60, 61(1) and 61(2) of the ACL.

27. The plaintiff’s claim for damages seems, together with the other group members, to have these elements:

1. the plaintiff and group members were consumers within the meaning of the ACL and acquired “services” from Scenic in that capacity;

2. the services that were acquired, and which were provided in trade or commerce, were that Scenic would arrange for and provide luxury cruises along European rivers for the use, amusement, entertainment, recreation or instruction of the plaintiff and group members;

3. included in those services was an obligation on the defendant in arranging the cruises to monitor and assess, prior to and after the dates for departure of the cruises, whether the planned tour itineraries could proceed in accordance with existing arrangements, or whether the tours should be varied, cancelled or delayed. Necessarily part of these services was a requirement reasonably to communicate that information to the plaintiff and group members.

31. The plaintiff then pleads that because the services were supplied in trade or commerce (about which there is no dispute) to the plaintiff and group members in their capacity as consumers (again about which there is no dispute), the provisions of ss 60, 61(1) and 61(2) of the ACL were applicable. There is no dispute by Scenic that the three guarantees were applicable to the 13 nominated cruises.

32. Section 60 of the ACL provides for a guarantee that services will be rendered with due care and skill (“the due care and skill guarantee”).

33. The plaintiff alleges that, in a number of ways, that due care and skill guarantee was breached. Those ways include:

1. failing to make any or any adequate enquiry about the nature and extent of flooding and rising river levels by reason of severe rainfall in late April and early May 2013 in Europe, and thus failing to determine that, having regard to the nature and extent of the flooding and rising river levels, it was “… inconceivable that the scheduled river cruises could proceed otherwise than without substantial disruption or delay”;

2. failing to cancel or delay the tours of the plaintiff and group members without receiving information that would lead a reasonable tour operator to conclude that it was likely that the river cruises, the subject of the proceedings, could proceed in a way that the plaintiff and group members would substantially enjoy the benefit of travelling on the tour;

3. failing prior to the embarkation of the plaintiff and some of the group members on various of the scheduled cruises to unilaterally cancel their tours and offer them an alternative either by way of the closest available tour or departure; and

4. alternatively, failing to offer to passengers on those cruises the opportunity to cancel their tours, either prior to embarkation or after embarkation, when it became obvious that the tours would not be completed as programmed.

34. Finally, there is an allegation that Scenic ought to have warned, but did not, the plaintiff and group members prior to departing from their Australian points of departure that the weather and river conditions were such that it was unlikely they would enjoy their river cruises.

35. Section 61(1) of the ACL provides that where services are provided in circumstances, as here, the plaintiff and group members acquired them, and the purpose for which the services are required is made known, there is a guarantee that the services supplied would be reasonably fit for that purpose. This has been called the “purpose guarantee”.

36. Section 61(2) of the ACL provides that where a desired result is made known (whether expressly or impliedly) to a provider of services prior to their acquisition, then the provider of the services guarantees that the services are such as might reasonably be expected to achieve the desired result. This is called the “result guarantee”.

37. The plaintiff pleads that both the purpose guarantee and the result guarantee were breached because the services provided did not satisfy either or both of the guarantees.

38. The plaintiff pleads that, as a consequence of the breach of each of these guarantees, he and the group members individually have suffered loss or damage:

“… in that, having embarked upon their respective tour itineraries during the relevant period, they did not experience, or substantially experience, travel and accommodation on cruises along the European rivers and touring to scheduled destinations by river cruise at all.”

39. The plaintiff’s claim for damages include the following components:

1. the price of the cruise;

2. the reduction of the value of the services below the price paid by him for those services;

3. inconvenience, distress and disappointment; and

4. loss of the opportunity to consider and accept any proposed alternative tour or cruise offered by the defendant, or to terminate arrangements with Scenic and receive a full refund of all amounts paid.

40. Alternatively to those claims, the plaintiff mounts a claim in restitution as being an action for money had and received.

41. The plaintiff pleads that as part of the price paid for the cruise, it is possible to identify a distinct or severable component. In circumstances where individual days, capable of being identified by reference to each cruise, were lost and the benefits of the cruising were not received on those days, then there has been a failure of the consideration which has been paid for those days of cruising and, accordingly, it would be unjust or inequitable for the defendant to retain the payments made which constituted the cruise component of the relevant tour price.

42. The second part of the claim relates to the defence pleaded by Scenic. In its Defence, Scenic pleads and relies upon the terms and conditions of the contract into which the plaintiff (and each group member) entered.

43. In response to that pleading, the plaintiff pleads that the identified terms and conditions, if read as Scenic contends they should be, were, and are, unjust within the meaning of the Contracts Review Act 1980 (“CRA”); that in enforcing the terms and conditions, Scenic is engaging in unconscionable conduct within the meaning of s 21 of the ACL; that the relevant terms and conditions are relied upon by Scenic in circumstances as would make them “unfair” within the meaning of s 24 of the ACL; and that as a consequence, in substance and effect, it is not open to the defendant to rely upon these particular terms and conditions of the contract in the way in which it does.

44. In what is perhaps an oversimplification of the plaintiff’s case, I would describe it in this way, namely, the plaintiff and group members booked a luxury river cruise with Scenic; in doing so, they expected to receive services of the kind they were promised in the brochure and other materials; Europe was the subject of very heavy rainfall and flooding in April and May 2013; the rainfall and flooding was unseasonal and very great. It must have been obvious to Scenic, either before the plaintiff and group members left Australia to travel to Europe to participate in the cruises or, alternatively, prior to the cruises commencing or, alternatively, at some point during at least some of the cruises, that the condition of the European rivers was such that the luxury river cruises were not going to take place at all or, if they did, it would be in circumstances of substantial disruption. Scenic either knew of those things and went ahead with the cruises in any event without telling the plaintiff and group members or, alternatively, ought to have known of them if they were acting with due care and skill.

45. The plaintiffs allege that the cruises with which they were provided did not match the promises that were made, and did not provide them with a luxurious holiday experience. In those circumstances, the plaintiffs claim an entitlement to compensation and damages.

The Case for the Defendant

46. Scenic contends that the poor weather, the very high river levels and flooding with the consequent adverse impact on navigation and on the timely operation of locks and the provision of docking facilities, amounted to circumstances entirely beyond its control and for any consequences of which it ought not be held liable. It contended that changing weather and variable river heights were an ordinary incident of river cruising which ought to be anticipated by its passengers. Speaking generally, it contended that these were risks for passengers to have regard to in considering whether to book a river cruise, when it should be booked for and what travel insurance should be arranged to enable the passengers to deal with those risks. As well, Scenic submits that such was the extent of the flooding and high water that it could not have been expected to predict or anticipate it.

47. The central contention in the defendant’s case, but not the only contention, is that the services which it provided are not defined in the same way as that contended for by the plaintiff. Rather, the defendant defines the services which it provided in this way:

“… the services which Scenic was contracted to provide was a tour at a particular time, which included a river cruise to the extent that river conditions allowed it; to provide reasonable endeavours to provide the tour booked in accordance with the itinerary and to use reasonable efforts to substitute, where required, a motor coach for a vessel, for example.”

48. The defendant’s case is that such a definition of services is the only one which sits consistently with the key provisions and fundamental terms and conditions of the contract entered into by the plaintiff and each group member.

49. Scenic points, in support of its definition, to terms which required it to use reasonable endeavours to provide the booked tour but, where Scenic was unable to provide the booked tour in accordance with the itinerary, its only obligation was to use reasonable endeavours to provide or arrange appropriate alternatives. In particular, Scenic points to the clause which entitles it to vary a tour and to substitute another vessel or motor coach for all or part of the itinerary, subject only to the fact that such alternative vessel or motor coach was “at the nearest reasonable standard”.

50. Scenic accepts that it was providing each of the tours at a particular identified time. It also accepts that monitoring and managing the tour were necessary requirements of the terms and conditions of the contract. It follows that they are a part of the services which it provided. The defendant’s submissions highlight the difference in this way, namely that Scenic seeks to argue that the nature of the services which it provides cannot be defined by the provisions of the consumer guarantees, but rather only by the contract, and all of its terms and conditions.

51. Put another way, Scenic argues that the proper approach by the Court to considering the plaintiff’s claim and the common questions is by first having reference to the entirety of the contractual arrangements, including all of the terms and conditions which were a part of the contract, and then define what services were being provided as determined by the contract.

52. The defendant submits that it was not in breach of any of the guarantees. In particular with respect to the purpose and result guarantees, Scenic pointed to the fact that the services provided must relate to the particular circumstances in place at the time and that the services provided need only be either reasonably fit for the purpose or, alternatively, of a nature or quality that might reasonably be expected. It points to the fact that the circumstances were such that the services which in fact were provided were reasonable and therefore there was no breach of consumer guarantees.

53. Scenic rejects the proposition that it was obliged to provide any warning to the plaintiff or group members about the difficulties which may be encountered on their cruises.

54. Whilst it will be necessary to deal with each of the defences in due course, it is appropriate to identify at this stage that Scenic also submitted that s 275 of the ACL, in combination with the Civil Liability Act 2002 (“the CLA”) has the effect that any claim for distress and disappointment is barred by the provisions of the CLA.

Shape of the Hearing

55. The Court embarked upon a hearing of evidence. It indicated to the parties that the matters to be determined by the evidence led during the course of that hearing would be the whole of the plaintiff’s claim and the common issues insofar as they affected the group members’ claims, and insofar as they were common to the whole or an identifiable part of the group. Those common issues were identified, in their final form, in a document filed in Court on 13 May 2016.

56. In light of the any in which this judgment deals with the extensive matters of fact which were in issue, it will be appropriate for the parties to have the opportunity to consider, and make submissions on, the findings relevant to these common issues and the precise answers which ought be recorded after they have had the opportunity to consider these reasons.

57. In those circumstances, identification of those common issues and possible findings can appropriately await a further judgment. This is not atypical in representative actions: see Peterson v Merck Sharpe & Dohme (Aust) Pty Ltd [2010] FCA 180.

A Late Amendment

58. When the hearing commenced, the plaintiff was proceeding on the basis of the Second Further Amended Statement of Claim, which had been filed on 26 April 2016.

59. When the plaintiff’s final written submissions were provided to the defendant, the defendant submitted that some of those submissions travelled outside of the existing pleadings and ought not be permitted by the Court to be considered. In particular, the defendant was concerned with a number of allegations about how Scenic was in breach of the due care and skill guarantee in failing to offer passengers on some cruises an opportunity to cancel those cruises either prior to embarkation, or at a time during the course of the cruise.

60. During final oral submissions, counsel for the plaintiff sought leave to amend the existing pleading. In so doing, he submitted that such an amendment was not strictly necessary in light of the way he had opened and conducted the plaintiff’s case. The defendant consented to some of the amendments, namely those in paragraph 12(e) of the existing pleading, but opposed the addition of paragraphs 12(ea) and 12(eb) together with consequential amendments to paragraphs 13 and 14 of the proposed pleading.

61. When the application for amendment was made, and after the plaintiff completed his submissions, counsel for the defendant opposed the application on a number of grounds. One was the self-evident lateness of the application. The second was the absence of any affidavit of explanation as to the reason why the application was being so late. Another was that had the defendant been aware earlier of the amendment, then it may have conducted its case differently.

62. The defendant was given a short adjournment to enable it to consider this submission, to identify with some precision whether it would have taken a different approach and, if so, what that may be. The time was also given to enable it to further consider its position generally. That was obviously an important matter on the question of the possible prejudice which Scenic may suffer if the late amendment were allowed.

63. Upon resumption, counsel for the defendant, whilst maintaining its opposition to the amendment, informed the Court that the time allowed had been adequate and that Scenic did not wish to call any further evidence, nor did it wish an opportunity to further consider whether to adduce further evidence. Counsel confined his submissions on prejudice to the existence of corporate stress brought by reason of the litigation and Scenic’s desire to have the litigation conclude as soon reasonably possible.

64. At the conclusion of those submissions, I indicated that I would grant leave to the plaintiff to further amend his Statement of Claim and that reasons for the decision would be given as part of these Reasons. Accordingly, on 12 May 2016, the plaintiff filed in court a Third Further Amended Statement of Claim which represents the current pleading. On 13 May 2016, Scenic filed a Defence to that pleading.

65. In my view it was appropriate to grant leave to the plaintiff to further amend the Statement of Claim because the effect of the amendment was, in substance, to ensure that the pleading aligned with the way in which the case had been opened and the evidence presented in support of it.

66. As well, I was satisfied that there was no prejudice to the defendant other than that which an order for costs would address. I was also satisfied that the necessity for the late amendment arose in circumstances where it had only become apparent to the plaintiff that the defendant objected to the way in which the case was being articulated in its final submissions. In other words, in circumstances where no objection had been taken to the plaintiff’s opening.

67. The context of the amendment was also important. The hearing which was being conducted was to deal with the entirety of Mr Moore’s claim on a final basis. With respect to the claims of each group member, the hearing was to decide a number of identified common issues, but it would not finally resolve all of the claims of the group members.

68. The proposed amendments insofar as they affected Mr Moore were, in my judgment, not significant. Mr Moore had pleaded that the cruise upon which he was booked ought to have been cancelled prior to embarkation by Scenic. The amendment added an allegation that Mr Moore, and his fellow passengers should, by 2 June 2013, have been given the option of cancelling the cruise himself (or themselves). Mr Moore was cross-examined on that issue by senior counsel for Scenic when he gave evidence, and a number of hypothetical factual circumstances were put to him about what decisions he may have made.

69. Similarly, with most of the other witnesses who had been passengers on various of the cruises, namely Mr Willems, Mr Cairncross, Mr Holgye and Mr Peattie, counsel for Scenic cross-examined them on various hypotheses (not necessarily the same) as to decisions which might have been made if circumstances had been different, and they had been offered the option of cancellation.

70. I concluded that counsel undertook that cross-examination as a result of a deliberate decision. No doubt it reflected his understanding of the case being made by the plaintiff at the time and the issues with which he needed to deal.

71. Ultimately, I was satisfied that the amendments were being made largely to bring the pleading into line with the way in which the case had been opened and conducted.

72. For all of those reasons I concluded that it was in the interests of justice to allow the proposed amendments and, accordingly, I granted leave to the plaintiff to file the Third Further Amended Statement of Claim. I made orders for costs of and occasioned by that amendment.

73. The parties made consequential amendments to the common issues.

Mr Moore’s Experience

74. In October 2011, Mr Moore, who was then teaching science at a senior college on the Central Coast, decided with his wife, Janet Howell, to book a holiday with Scenic. Before doing so, he obtained a number of brochures including one about a wide range of Scenic cruises including those along the waterways between Amsterdam and Budapest. In addition, Mr and Mrs Moore were attracted to the tour being operated by Scenic because they had seen an ad on television.

74. Mr and Mrs Moore went to Harvey World Travel, a retail travel agent in Warners Bay. They did so to collect a large brochure of the kind which is in evidence, and which I have described elsewhere in the judgment. They had not been to the travel agent before, and did not ask any questions at the time of collecting the large brochure.

75. Although there is no direct evidence on the topic, I would readily infer from the evidence of other passengers who obtained a similar brochure, and the terms of it, that the brochures were prepared and printed by, or at the behest of, Scenic and distributed to a large number of travel agents around Australia by Scenic, to promote its cruise program.

76. Mr Moore had not travelled overseas extensively prior to this occasion. He had undertaken one previous trip about 20 years before visiting Harvey World Travel, which was to China as part of a sporting team visit to that country. He did not attend to any of the booking arrangements, and travelled as one of the group on that trip. He relied upon the organisers of that sporting event to undertake all of the appropriate arrangements.

77. Mr Moore said, and I accept, that he and his wife were interested in the Scenic cruise because they liked the idea of having to unpack their belongings once only, and then still be able to see a number of locations in Europe by cruising along the waterways. This was of particular significance to Mr Moore who had had spinal surgery in 1993 and found it difficult to spend extended periods of time sitting down, particularly in confined spaces.

78. Having considered the matter with his wife, Mr Moore decided to book a cruise with Scenic, in particular the one which departed Amsterdam for Budapest on 3 June 2013, namely Cruise 8. Mr Moore in fact booked a package described in the Booking Advice issued on 6 September 2012, as “Paris and Jewels of Europe (PACR 310513.1) from Paris to Bud”. In essence, Mr Moore and his wife flew to Paris, arriving on 1 June 2013, staying for two nights in a Paris hotel, before travelling by train to Amsterdam to embark on Cruise 8. There is no suggestion that the time spent in Paris was as a part of a designated group tour. The specific package (if it was one) was not mentioned in the brochure or separately identified.

79. On 15 December 2011, Mr Moore attended at the Harvey World Travel Agency and booked the cruise paying an initial deposit of $500. A receipt was issued by Harvey World Travel, for that payment which was described as “Pre-registration for Scenic European River Cruise for 2013”.

80. On 6 September 2012, or shortly thereafter, Mr Moore received a four page document which originated from Scenic described as a “Booking Advice”. It was in fact addressed to Harvey World Travel. I infer that Harvey World Travel provided the Booking Advice to Mr Moore.

81. The last line of that document, on the fourth page, read:

“This booking is covered by the Terms and Conditions of the relevant brochure”.

83. The document did not otherwise identify or further specify the brochure referred to. No copy of any Terms and Conditions was attached. No brochure was attached. The only brochure to which it could refer was the brochure current for cruises for 2013/2014, which was distributed by Scenic to travel agents.

84. Mr Moore was asked in cross-examination whether he had seen various references to the existence of terms and conditions in the brochure. He denied that he had. It was suggested to him that there would have been terms and conditions in relation to any contract which he entered into with Scenic, but he denied that - although he admitted that there were terms and conditions that he had read at a later point in time. He was unable to be specific about that time which was clearly before departure from Australia. I accept Mr Moore’s evidence on these matters. Mr Moore was not an experienced traveller.

85. On 16 May 2013, shortly prior to his departure, Mr Moore received an itinerary from Harvey World Travel. That itinerary provided the information that Mr Moore and Ms Howell would be leaving Sydney on a Singapore Airlines flight departing at 3.15pm on 30 May 2013.

86. That flight had been booked by Scenic on behalf of Mr Moore and his wife, and the charge for it was included in the monies paid to Scenic by Mr Moore. Accordingly, I infer that Scenic was, at all relevant times, aware of when Mr Moore and his wife would be leaving Australia for Europe to take up their river cruise booking. Scenic also had Mr Moore’s contact details.

87. Shortly after leaving Australia, on 1 June 2013, Mr Moore received the following letter from Scenic. It said, referring to his booked cruise which was scheduled to commence less than 48 hours later:

“We have recently experienced high water levels on several European waterways. In particular this week, the high levels on the River Main have prevented navigation and this has had an impact on all river cruises in that region. High water levels prevent the ships sailing due to bridge clearance, lock operations and docking locations.

Due to these events, the Scenic Jewel is not able to be in Amsterdam for your embarkation, and we are forced to arrange a ship swap and your embarkation will be on the Scenic Ruby. The Scenic Ruby is consistent with the Scenic Jewel, delivering the same inclusions, facilities and guest services. The deluxe balcony suite you have booked on the Scenic Jewel is not identically replicated on the Scenic Ruby, and although you will occupy the suite on the equivalent location, the suite will have some difference in layout and design features. Due to this change in your suite for this cruise, we will be arranging for the appropriate refund to be sent directly to you on your return home.

Although the river situation is a changing set of circumstances, we are making arrangements to have you on board the Scenic Jewel at a convenient location during your cruise. If this is possible, you will complete your cruise on board the Scenic Jewel as originally planned.

As this day approaches, you will be given all the necessary details from your cruise. Rest assured that our crew will undertake this ship change to your cabin on the MS Scenic Jewel during the day whilst you are enjoying your sightseeing activities.

I do apologise for the alteration, however I can assure you that our crew will do everything to make your cruise experience on board both these luxury ships truly memorable.

Your Cruise Director will advise all final arrangements and river conditions as you relax and enjoy your ultimate European cruising experience.”

88. Mr Moore and his wife joined the cruise on 3 June 2013 (the first day of the cruise) while the ship was docked in Amsterdam. The ship remained in Amsterdam on the day and evening of 4 June 2013. It was always intended that it would depart Amsterdam late in the evening of 4 June 2013 or else early on the following morning.

89. Upon boarding, each passenger, including Mr Moore, received a fold-out map entitled “Amsterdam to Budapest River Map”. It was printed with Scenic’s name on the cover. It traced the path along which the “Jewels of Europe” cruise would travel. It recorded river distances between identified landmarks. By reference to that map, which I infer is substantially accurate, it can be seen that the cruise involved travelling along the Rhine river from Amsterdam to Hochheim, a cruising distance of about 500km, then along the Main river from Hochheim to Bamberg, a cruising distance of 380km, then along the Main/Danube Canal from Bamberg to near Riedenburg, a cruising distance of 160km; and then finally along the Danube river from Kelheim to Budapest, a cruising distance of about 750km. In total the cruise from Amsterdam to Budapest involved cruising along the waterways just described for about 1,790km.

90. Upon arrival on the cruise ship on 3 June 2013, and after embarkation, Mr Moore gave evidence of a talk which was held by the Cruise Director, Mr Patrick Doyle, with the passengers then on the ship. He said:

“We will be embarking on the space ship Ruby instead of the Scenic Jewel as the Jewel is not available. The Jewel has been stuck in Bamberg for 8 days now due to the river levels. Don’t worry as all of the Scenic ships are exactly the same in standards and inclusions. We are having some problems with the rising river levels. We will only be on the Ruby for a couple of days and then we will change to the Jewel.”

91. Mr Moore was not challenged on his recollection of that conversation. I accept it. I also accept that Mr Doyle, the Cruise Director, was accurately describing the situation with respect to the waterways to Budapest. The effect of that conversation was that the river levels had, since about 27 May 2013 (which was about 8 days earlier), been such as to prevent complete navigation along the three river systems because of an issue with respect to the river heights and bridge clearances in the Bamberg area. Bamberg is located at the junction of the Main River and the Main/Danube canal.

92. The cruise which Mr Moore was booked on was, according to the itinerary, due to leave Amsterdam and commence cruising on the second day, that is, 4 June 2013. The third day of the cruise was described this way in the itinerary:

“Day 3 Cologne – Marksburg

Today cruise into Germany to historic Cologne. Choose from one of the following included Scenic free choice tours:

(1) Discover Dusseldorf on a guided walking tour; or

(2) Enjoy a walking tour of Cologne;

(3) A guided hike in Cologne’s botanical gardens.

Tonight’s Scenic’s enrich highlights include a private medieval banquet in Marksburg Castle. Set high above the banks of the Rhine, this 12th century castle is the only one in this region never to have been destroyed. Enjoy a private tour of the castle before stepping back in time for a medieval feast.”

93. According to Mr Moore’s account, which was not challenged and which I accept, on this day, when the ship arrived in Cologne, it appeared to him that the river level was too high and that the ship would not be able to pass under one or more of the bridges in the area. Marksburg, according to the map given to travellers on the ship, was about 110 km by river from Cologne. The distance is a little further by road.

94. After arriving in Cologne, those passengers attending at the dinner at Marksburg Castle were directed onto a coach that had been organised for this outing and were then driven to the castle. The coach trip took a number of hours each way. The result was that the passengers arrived back on board the ship at about 12.30am.

95. The following day, 5 June 2013, the ship was able to cruise further up the Rhine River towards Koblenz. The ship was unable to sail under the three bridges that crossed the Rhine River at Koblenz and, accordingly, it turned around and sailed back a short distance to the junction of the Moselle and Rhine Rivers and docked in the Moselle River. At that point, the Cruise Director informed passengers that due to the rising river levels the ship was unable to proceed up the Rhine Gorge, but that the situation would be reassessed in the event that the river levels decreased. The ship remained docked on the Moselle River in Koblenz. It was moored between two other boats. The effect of this was that Mr Moore and his wife had views of nothing other than cruise ships, and the use of their balcony was hindered.

96. At that time the passengers were informed by the Cruise Director that they would be unable to cruise any further along the Rhine River until the rivers subsided. A cruise through the Rhine Gorge was regarded by many passengers as the principal highlight of the cruise.

97. The passengers on the cruise were then offered coach trips to various locations which were not otherwise part of their itinerary. Whilst in Koblenz the passengers were offered a coach trip to a town Cochem which involved a round trip of approximately 120 km. That trip took about 1½ hours and the passengers toured a medieval village for about half an hour and were then returned to the ship.

98. The following day, 6 June 2013, passengers were offered a coach trip to Munich. The alternative was to remain on board the ship, moored where it was between two other cruise ships with no cruising occurring and no external views except into and over these boats. Mr Moore and his wife elected to go on the coach trip. Apparently full details were not provided to them and they did not realise that what was involved was a coach ride of approximately 2½ hours each way, and then once in Munich, a coach sight‑seeing trip of about 1 hour’s duration.

99. On the evening of 6 June 2013, after returning from that trip, Mr Moore and his wife and other passengers were told by the Cruise Director that the rivers were still too high and that they were not going to be able to cruise anywhere from that location. They were told:

“We have decided to abandon this ship. I will need you all to be packed by 8am tomorrow as we have booked buses and we will be travelling to Würzburg to board the Scenic Jewel.”

100. On 7 June 2013, the bus that was provided for the trip from Koblenz to Bamberg via Würzburg did not have an operational air conditioning system and did not have a functioning bathroom. The trip to Würzburg took many hours and the passengers arrived there at about 12 noon. A break was taken in Würzburg and the passengers were shown around the castle and given approximately 1 hour of free time to spend in the town. At the end of that time, they resumed their coach trip for a further 2½ hours to Bamberg to embark on the Scenic Jewel.

101. Unsurprisingly, by the end of that, and having regard to the lengthy coach travel which had occurred up to that point in time, Mr Moore noticed that his back was particularly sore.

102. The coach trip from Koblenz to Bamberg meant that Mr Moore and his wife missed out on about 475km of cruising along the Rhine River (about 80kms), the Main River (about 380kms) and about 15kms of the Main/Danube Canal.

103. When the passengers arrived in Bamberg, they found that the Scenic Jewel had been moored in an abandoned and somewhat desolate industrial area, which was about a 10 minute coach trip outside the town of Bamberg. There, the coaches did not have ready access to the ship’s mooring. There was a steep hill between the ship and where the coach pulled up – the passengers were between 500m and 1km away from the ship which required considerable physical effort to transfer on and off the ship.

104. On 9 June 2013, the passengers were taken by coach into Bamberg and spent some time there. On their return, the passengers alighted from the coach and walked the distance of between 500m and 1km to the ship through quite heavy rain. No wet weather gear or umbrellas were provided.

105. During the evening of 9 June 2013, the Cruise Director informed the passengers that, given the river levels which existed, they would be unable to continue cruising and would be docked in Bamberg for a number of days whilst waiting for the rivers to subside.

106. On 10 June 2013, rather than cruising about 80kms along the river from Bamberg to Nuremberg, passengers were offered – and Mr Moore and his wife accepted – a coach trip into Nuremberg. The alternative was to remain on the ship, docked in the way I have previously described, which would not have been an attractive proposition. The return trip to Nuremberg occupied about 6 hours or so.

107. Upon returning to the ship, Mr and Mrs Moore received a letter dated 10 June 2013 from Scenic. It read:

“Scenic Tours is working around the clock to manage the current ever changing situation.

Our aim is to deliver the itinerary as much as possible, to ensure that the on‑board inclusions remain unaffected.

As navigation is permissible on the river sections, we are making forward plans to sail as per the planned itinerary, and to utilise our fleet of space ships to deliver the cruise itinerary to you in a complete form as possible. Where suitable, we will perform a ship swap to pass any river sections that are a barrier to the continuity of the cruise.

With any extended docking, where there is an impact on the itinerary, we recognise your concerns about missed attractions or changes to the planned itinerary. At the conclusion of the cruise we will be making a refund to you, based on the impact to the overall cruise.

We appreciate your understanding as we strive to work within the limitations imposed by the water levels and the resulting navigation restrictions.”

108. On 11 June 2013, the ship remained moored in Bamberg and Mr and Mrs Moore stayed on board for that day. The passengers were scheduled to undertake a tour to Regensburg that day, but road flooding prevented that tour from proceeding.

109. On 12 June 2013, the ship cruised from Bamberg towards Berchsheim. Five stops had been scheduled on the itinerary between Bamberg and Vienna so that the passengers could visit Regensburg, Passau, Melk, Durnstein and the Wachau Valley. The ship arrived at Berchsheim quite early in the morning, and did not proceed any further. The cruise did not stop at any of the five identified places. Mr Moore and his wife did not cruise on the 50km (or so) along the Main/Danube Canal or the 500km (or so) along the Danube River to Vienna.

110. On the day of their arrival in Berchsheim (which is east and south of Nuremberg), the passengers were advised that they would be travelling by coach to Vienna the following day with a stop for lunch on the way. The Cruise Director said:

“Unfortunately, given the delays which we have had today, we are running behind our schedule. You will not be able to do any of the Scenic free choices as we need to make up time.”

111. Mr Moore questioned the position, referring to news reports that the rivers had not yet reached their peak level. The Cruise Director responded:

“Don’t listen to the media. They always over-exaggerate things. I have been advised by head office that the river levels are subsiding. Unfortunately, a number of locks between here and Vienna are still closed. We have decided to enact a further ship swap in Vienna. You will all need to be ready to abandon this ship at 8am tomorrow and board the buses which will take us to the Scenic Pearl which is awaiting our arrival in Vienna.”

112. In a further conversation later that evening, Mr Moore asked the Cruise Director how long the bus trip to Vienna would be. He was informed that it would be about eight hours in total. Mr Moore informed the Cruise Director that with his back condition he would not be able to tolerate a bus trip of 8 hours.

113. The Cruise Director told Mr Moore that travel by train was possible between Regensburg and Vienna and would take about three hours. The Cruise Director made it plain that he (or Scenic) would not make any arrangements for train travel for Mr Moore and his wife. The Cruise Director said:

“You will need to organise that yourselves. We can’t help you with that. Are you going to go by train or get on the bus, so I know the numbers?”

114. Mr Moore declined to travel on an eight hour bus trip and said that he and his wife would organise a train trip.

115. This was the first occasion that Mr Moore and his wife had been Europe. They found organising the train trip extremely daunting and that it was particularly difficult to make arrangements, once they arrived in Vienna, to find and meet up with the rest of the travel group. Notwithstanding these difficulties, on the following day (14 June 2013) they travelled by coach from the ship in Berchsheim to Regensburg where, together with three other couples who were fellow cruise passengers, they went to the train station and caught the train to Vienna.

116. After arriving in Vienna, Mr Moore and his wife boarded the Scenic Pearl. There they received a letter dated 14 June 2013, which was in identical terms to the letter received by them on 10 June 2013 which is set out above at [107].

117. Their cruise itinerary had provided for two full days in Vienna, being days 12 and 13 of the tour. Included in those two days was a free choice tour by way of an excursion to the Slovakian capital of Bratislava. There were other inclusions as well such as a guided tour to the Schönbrunn Palace or a guided tour of the Spanish Riding School and observation of the morning exercise program of the Lipizzaner stallions.

905. Accordingly, I conclude that the CLA was not intended to, and does not have, any extraterritorial effect. This conclusion is not inconsistent with that reached by the High Court in Insight Vacations.

906. Accordingly, I am satisfied that where the events giving rise to an entitlement to damages happened outside of NSW, as did Mr Moore’s damages for distress and inconvenience, Pt 2 of the CLA does not apply to such a claim.

907. Mr Moore’s distress and inconvenience upon which his damages claim is based, arose outside of NSW because the failure to comply with the consumer guarantees occurred when Mr Moore’s cruise experience suffered the major failure which I have earlier described. That failure occurred overseas. Mr Moore, in the course of that failure, suffered disappointment and distress. Those feelings were suffered overseas and as a consequence of the overseas events.

908. As Pt 2 of the CLA does not, in my view, apply to the claim by Mr Moore for damages, any award which I make on this claim will not contravene the provisions of s 11A which restrict the jurisdiction of this Court in the awarding personal injury damages contrary to Pt 2. That is because Pt 2 does not apply to Mr Moore’s claim. Any award of damages on that basis is not contrary to the Part, because the Part has no application.

Assessment of Damages

912. Damages for distress and disappointment are able to be assessed at large. In Mr Moore’s case, the features of importance, as have been previously articulated, included the fact that this was his first trip to Europe and his first experience of a river cruise, the fact that he had booked it significantly far in advance with the expectation, according to the material given to him by Scenic, that he would be immersed in an all-inclusive luxury cruise along the rivers of Europe, that he had taken long service leave for this purpose and that his particular physical disability meant that the particular form of cruise which he chose was important.

913. Each case must be assessed according to the distress and disappointment which a person has suffered, and having regard to all of the facts and circumstances which are proved for that individual.

914. It does not seem to be correct to award only a token or nominal sum for such damages. I reach that conclusion by a consideration of other cases which have been given awards for damages for distress and disappointment. Those cases are:

1. Jarvis v Swan Tours Ltd where, Lord Denning MR, with whom Edmund Davies and Stephenson LJJ agreed, assessed damages for distress and disappointment in the sum of £125, which was very close to double the cost that the plaintiff had paid for his holiday, which was £63.90;

2. In Baltic Shipping Co, the trial Judge awarded damages for disappointment and distress in the sum of $5,000 which was a little under double the fare which totalled a little over $2,200.

3. In Insight Vacations, the trial Judge made an award of $8,000 for damages for disappointment which was a little under double the cost of the basic trip which was about $4,700: see Young v Insight Vacations Pty Ltd [2009] NSWDC 122 at [6]. Ultimately, as indicated above, that award was disallowed, but not on any basis related to the sum of money which was awarded.

915. Identifying these awards and having regard to them, I so as to be satisfied merely that awards of damages for distress and disappointment are not nominal or token awards does not contravene the principle in Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; (1968) 119 CLR 118 at 124. In Planet Fisheries, the High Court rejected a submission, in a case concerned with excessiveness of an award of general damages, that the Court should seek out a norm or standard from other decisions by which the award under challenge could be identified as disproportionate: see also Rogers v Nationwide News Ltd [2003] HCA 52; (2003) 216 CLR 327 at [69] per Hayne J.

916. Rather, the reference to these decisions is a transparent way of determining an issue of principle, namely whether awards of damage for distress and inconvenience are merely nominal or not. An assessment of the sum of damages is still one undertaken as in the individual case of Mr Moore, by an evaluative process applying a sense of fairness and justice: see Moran v McMahon (1985) 3 NSWLR 700 per Kirby P at 707Cff.

917. The reference by me to these cases does not constitute any inhibition at all of the evaluative function upon which I am engaged. Nor am I attempting to derive a norm or standard of damages. The use of them rather falls into identifying nothing more than a rule of thumb acquired by a form of convention: see Kirby P in Moran v McMahon at 706D.

918. Here, the plaintiff claims the sum of $2,000 in his final submission.

919. I regard this as, in the circumstances applicable here, a modest sum. Having regard to all of the circumstances, I would have assessed the plaintiff’s damages as being somewhat higher than that. However, since that is all the plaintiff claims, it would be wrong in the circumstances, and procedurally unfair to the defendant, to determine a sum which exceeds that claimed.

920. For damages for disappointment and distress, I award the plaintiff $2,000.

921. Interest ought accrue on that award from 17 June 2013 which is the date upon which the cruise ended.

Restitutionary Judgment for Money Had and Received

922. The plaintiff claims as an alternative, against the possible failure of his claim for damages for contravention of the statutory guarantees, an entitlement to a significant refund of the monies which he paid, on the basis of a claim for money had and received.

923. The plaintiff submitted that such an action arises where there is a failure of consideration in circumstances where payments are made for a particular purpose, and the purpose fails or the contemplated state of affairs disappears. The plaintiff submitted that here, by the mechanism of a daily allocation of the cruise cost, the consideration is partly severable so that monies paid for a purpose which has failed can be recovered.

924. The plaintiff went on to submit that the decision, to contrary effect in Baltic Shipping, is distinguishable.

925. The defendant submitted that there was nothing about the circumstances of the agreement between Mr Moore and Scenic which involved any apportionment of any of the payments at all, let alone to distinct performance obligations. The defendant submitted that the decisions relied upon by the plaintiff were not in point.

926. As I am dealing with a claim which arises only in the alternative, the claim can be dealt with quite readily, and without lengthy discussion.

927. I have earlier found that a single price was paid for the tour upon which Mr Moore embarked and further that, as the facts demonstrate, it was paid well in advance. There was no apportionment between the parties with respect to any part of that payment.

928. For my part, I find the circumstances here indistinguishable from those which applied in Baltic Shipping. There, the cruise passenger had paid monies in advance for the cruise. The ship sank 10 days into a 15 day cruise. The first part of the cruise had been undertaken without incident. The action for money had and received in that case depended upon an allegation of total failure of consideration.

929. The High Court held that a claim in restitution was not available to the plaintiff. At [12], Mason CJ said:

"When, however, an innocent party seeks to recover money paid in advance under a contract in expectation of the entire performance by the contract breaker of its obligations under the contract, and the contract-breaker renders an incomplete performance, in general, the innocent party cannot recover unless there has been a total failure of consideration. … If the incomplete performance results in the innocent party receiving and retaining any substantial part of the benefit expected of the contract, it will not be a total failure of consideration.”

930. The Chief Justice went on to find that the consequence of the passenger’s enjoyment of the benefits provided under the contract during the first eight full days of the cruise, was that the failure of consideration was partial not total. Brennan J agreed with the Chief Justice on this question. Deane and Dawson JJ also concluded that there had not been any failure of consideration of a kind sufficient to give rise to restitution.

931. McHugh J analysed the position in this way:

“Contrary the conclusion reached in the Supreme Court of New South Wales: Mrs Dillon was not entitled to have her fare refunded. The advance payment of the fare was not a security for the price of the cruise. Nor was it a payment which was to be earned by Baltic only upon performance which promise to provide a fourteen day cruise. The fare, with other fares, was payable in advance in order to provide a fund from which Baltic could meet the expense of providing the various benefits associated with the cruise, benefits which were to be enjoyed throughout and from the commencement of the cruise. Consequently, the right of Baltic to retain the amount of the fare became unconditional once Baltic began to provide those benefits to Mrs Dillon. Furthermore, the subsequent sinking of the ‘Mikhail Lermontov’ did not alter Baltic’s unconditional right to retain the amount of the fare. Because the common law has no doctrine of apportionment in respect of a partial failure of consideration, Mrs Dillon’s remedy in respect of Baltic's failure to complete the cruise was an action for damages for breach of contract and not an action for partial restitution of the sum paid as the price of the fare.”

932. I can find no difference in substance between what occurred in that case to the unfortunate Mrs Dillon, and the circumstances in which the cruise was booked by and paid for, by Mr Moore in these proceedings.

933. In my view, there has not been a total failure of consideration, and it is not open to the plaintiff to obtain restitutionary relief on the basis that one can apportion the cruise cost on a daily basis and deal with the claim on the basis that there has been a total failure on those days.

934. I would reject this claim.

Summary

935. I have concluded that Mr Moore is entitled to compensation under the ACL for a breach of the due care and skill guarantee by Scenic amounting to a total of $12,990 plus interest. He has also established breaches of the purpose and result guarantees.

936. In terms of the issues raised at hearing, I have resolved them in the following manner:

937. On the issue of the proper characterisation of the services provided by Scenic to Mr Moore, I have held that the services were appropriately characterised as generally put forward by the plaintiff. That is, services which were recreational and were constituted by an all-inclusive, luxury five-star river cruise. Moreover, Scenic was obliged to provide, both in advance of the intended cruise and during it, information about events and circumstances and the impacts (other than de minimis) which those events and circumstances would be likely to have on a passenger’s enjoyment of the cruise, and the ability of Scenic to provide those services in a timely manner.

938. I have found that the consumer guarantees applied to Mr Moore and the other passengers.

939. I have also found that the purpose guarantee and the result guarantees have been breached by Scenic in relation to all cruises except cruises 10 and 12. The due care and skill guarantee was not pleaded in relation to cruises 2 and 3, and I have found that it was breached in all cruises except for cruise 12.

940. Furthermore, I have concluded that the breach of the consumer guarantees constituted a “major failure” within the meaning of s 268 of the ACL.

941. As to Mr Moore’s right to compensation, I have found that Mr Moore had an action to recover compensation for any reduction in the value of the services below the price he paid (s 267(3)(b) ACL) and also that he may recover damages for any loss which was reasonably foreseeable (s 267(4) ACL).

942. In construing the operation of s 275 of the ACL, I have determined that that section applies the provisions of the CLA. Accordingly, subject to the issue of extra-territoriality, I have found that Mr Moore’s claim must fail because the evidence did not establish that the extent of Mr Moore’s disappointment and distress could reach the minimum threshold fixed by s 16 of the CLA.

943. With regards to extra-territoriality, I have concluded that, absent any specific words displacing the presumption that legislatures do not presume to exceed their jurisdiction, the CLA cannot apply to Mr Moore’s claim, where Mr Moore’s distress and disappointment had occurred outside of Australia. As a result, s 275 of the ACL does not prevent Mr Moore’s claim in damages.

944. Upon this basis, I have awarded Mr Moore the sum of $12,990 in compensation, being the sum of $10,990 (awarded for compensation for loss of value) and $2,000 (awarded as damages under s 267(4) of the ACL), plus interest. In doing so, the Court rejected Mr Moore’s alternative argument that he was entitled to a significant refund of the monies which he paid, as money had and received.

Common Questions

945. It will be appropriate for the parties to have an opportunity make submissions on the way in which the identified common questions should be answered, and the form which those answers should take, including whether the questions are no longer to be regarded as being common.

Orders

946. I make the following orders:

1. Judgment for the plaintiff against the defendant in the following amount:

1. $10,990 by way of compensation;

2. $2,000 by way of damages;

3. Interest in accordance with s 100 of the Civil Procedure Act 2005, on the sum in (a) from 3 June 2013, and on the sum in (b) from 17 June 2013.

2. Defendant to pay the plaintiff’s costs of his claim on a party and party basis forthwith.

3. Declare that for the purpose of order 2, and in accordance with UCPR r 42.34, I am satisfied that the commencement and continuation of the proceedings in the Supreme Court and not in any other Court was warranted.

4. Order the plaintiff to file and serve Short Minutes of orders which he proposes should be formally made by the Court on or before 29 September 2017 including the proper sum for judgment and interest.

5. Order the defendant is to file and serve Short Minutes of the orders which it proposes should be formally made by the Court on or before 20 October 2017.

6. Each party is to file with the Short Minutes of Order, the answers which it contends ought to be given to the questions agreed by the parties, together with an outline of submissions in support of the Short Minutes of Order and answers to common questions.

7. If any party seeks any costs order different from that which the Court proposes, then the party should file a notice of motion specifying such orders, together with all affidavits in support and outline of written submissions (not exceeding 5 pages) in support of such orders on or before 27 October 2017.

8. If a party opposes such costs order, then that party is to file all affidavits upon which it intends to rely and an outline of written submissions (not exceeding 5 pages) on or before 10 November 2017

9. Stand the proceedings over to 15 November 2017 at 9.30am for the determination of the appropriate orders to be made including the determination of any Notices of Motion for costs.

10. The parties have liberty to apply on 2 days’ notice.

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Amendments

31 August 2017 - [935] Typographical error

Decision last updated: 31 August 2017