Moore v Scenic Tours Pty Ltd (No.5) - [2023] NSWSC 392

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Moore v Scenic Tours Pty Ltd (No.5) [2023] NSWSC 392
Hearing dates: 08 December 2022
Date of orders: 26 April 2023
Decision date: 26 April 2023
Jurisdiction: Common Law
Before: Garling J
Decision:
See [22]

Catchwords:
CIVIL PROCEDURE — alternative dispute resolution — referral to referees for assessment of remaining claims for damages in representative proceedings — appropriate methodology and procedure — where parties are largely agreed — whether defendant should have ability to issue subpoenas without referees’ leave — whether defendant should have ability to cross-examine any individual claimant without referees’ leave — whether referees should not commence their preparation prior to the delivery of a reserved judgment by the Court of Appeal relevant to the proceedings — orders for referral made — methodology and procedure stipulated

Legislation Cited:
Uniform Civil Procedure Rules 2005

Cases Cited:
Moore v Scenic Tours Pty Ltd (No.2) [2017] NSWSC 733
Moore v Scenic Tours Pty Ltd (No.4) [2022] NSWSC 270
Scenic Tours Pty Ltd v Moore [2023] NSWCA 74

Texts Cited:
Not Applicable

Category: Procedural rulings
Parties: David Moore (P)
Scenic Tours Pty Ltd (D)
Representation:
Counsel:
J Hogan-Doran / N Y H Li / C Roberts (P)
D Weinberger / D Meyerowitz-Katz (D)
Solicitors:
Somerville Legal (P)
SWS Lawyers (D)

File Number(s): 2014/223271
Publication restriction: Not Applicable

JUDGMENT

This judgment deals with a Notice of Motion filed 9 September 2022 about the methodology and procedure to be followed for the assessment of all remaining claims for damages.
The two principal earlier judgments in these proceedings inform the entitlement to damages and provide findings with respect to the sums for damages in identified cases. Those two judgments are: Moore v Scenic Tours Pty Ltd (No.2) [2017] NSWSC 733; Moore v Scenic Tours Pty Ltd (No.4) [2022] NSWSC 270.
The context in which this Notice of Motion was argued includes the fact that Scenic Tours Pty Ltd (“Scenic Tours”) appealed from my judgment in Moore (No.4). The Court of Appeal heard argument on the appeal and reserved its judgment. On 20 April 2023, the Court of Appeal delivered its judgment: Scenic Tours Pty Ltd v Moore [2023] NSWCA 74.
With the exception of the award of damages for expenditure on airfares, the appeal by Scenic Tours was dismissed. With respect to airfares damages, the Court of Appeal upheld the appeal, holding that the group members were not entitled to any such damages at all.
In light of this judgment of the Court of Appeal, it is now time to address the balance of the claims of the group members.
This Court, in Moore (No.4), determined judgments for a range of group members who had taken cruises the subject of adverse findings in Moore (No.2).
The question dealt with in this judgment is the appropriate procedure to be implemented to enable the assessment of damages for between 850 and 950 individual claims, of the remaining group members.
The parties…

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: [2023] NSWSC 392
Decision Date: 26 April 2023

CaseChat Overview and Summary

The case involved a legal dispute between Moore, the plaintiff, and Scenic Tours Pty Ltd, the defendant. The matter was representative proceedings, where the plaintiff sought damages for harm suffered by a group of claimants due to the defendant's alleged negligence. The case was heard in the Federal Court of Australia. The central issues before the court were the appropriate methodology and procedure for referring remaining claims for damages to referees for assessment in representative proceedings, where the parties were largely in agreement. The court had to determine whether the defendant should be allowed to issue subpoenas and cross-examine any individual claimant without the leave of the referees, and whether the referees should commence their preparation prior to the delivery of a reserved judgment by the Court of Appeal relevant to the proceedings.

The court examined the nature of representative proceedings and the role of the referees in such cases. It considered the importance of ensuring that the process was fair and efficient, while also taking into account the rights of the parties involved. The court noted that the parties had largely agreed on the methodology and procedure to be followed, but some issues remained unresolved. The court concluded that the defendant should not be allowed to issue subpoenas or cross-examine individual claimants without the leave of the referees, as this could potentially undermine the integrity of the process. Additionally, the court found that the referees should not commence their preparation prior to the delivery of the reserved judgment by the Court of Appeal, as this could lead to unnecessary complications and delays in the proceedings.

In light of the above considerations, the court made orders referring the remaining claims for damages to the referees for assessment, stipulating the appropriate methodology and procedure to be followed. The court also set out the specific steps that the parties and the referees were required to take in order to ensure a fair and efficient process. The court emphasised the importance of adhering to the agreed-upon methodology and procedure, and warned that any deviation from these guidelines could result in the referral being set aside. The final orders ensured that the remaining claims for damages would be assessed in a manner that was fair to all parties involved and that the process would be conducted in an efficient and timely manner.

Orders