Moore v Scenic Tours Pty Ltd; Scenic Tours Pty Ltd v Moore

[2019] HCATrans 189

[2019] HCATrans 189

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S298 of 2018

B e t w e e n -

DAVID MOORE

Applicant

and

SCENIC TOURS PTY LTD

Respondent

Office of the Registry
  Sydney  No S299 of 2018

B e t w e e n -

SCENIC TOURS PTY LTD

Applicant

and

DAVID MOORE

Respondent

Applications for special leave to appeal

BELL J
KEANE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 SEPTEMBER 2019, AT 10.32 AM

Copyright in the High Court of Australia

____________________

MR J.T. GLEESON, SC:  May it please the Court, in the first matter I appear with MR J.A. HOGAN‑DORAN and MS C.G. WINNETT, for the applicant.  (instructed by Somerville Legal)

MR D.L. WILLIAMS, SC:  May it please the Court, I appear with my learned friend, MR D.S. WEINBERGER, for Scenic Tours Pty Ltd in each of the two matters.  (instructed by SWS Lawyers)

BELL J:   Yes, Mr Gleeson.

MR GLEESON:   Your Honours, in this matter we obtained the indulgence of an amended application.  Could I indicate that of the five grounds I did not propose to address in‑chief grounds 3, 4 or 5, unless your Honours had questions.

GORDON J:   Ground 3 being the Baltic Shipping point.

MR GLEESON:   Ground 3 being Baltic Shipping.  The Court gave a preliminary indication on that last time but had not heard yet from Mr Williams on it so that is still in the ring.  And on grounds 4 and 5, I made a concession in argument.

BELL J:   Yes, indeed.

MR GLEESON:   That it is linked to Mr Williams and they suffer the same fate, perhaps.

BELL J:   Your ground 2 is the ground that was foreshadowed on the last occasion, and ground 1 seems to be a further refinement?

MR GLEESON:   Yes, it is a further refinement.  And, your Honour, on our reflection on it we have put ground 1 in because we consider and submit that it is, in a sense, the key entry point and perhaps the exit point for the entire analysis and a very important point of intersection between federal law and State law.  So I did want to address your Honours on ground 1, if that is appropriate.

BELL J:   Yes.

MR GLEESON:   Your Honours have, in the small joint book, the relevant provisions at pages 22 to 24.  The guarantees are set out at page 22 and the two key points of construction that underpin ground 1 are, firstly, in section 267(4).  There is a creation of a right to:

recover damages for any loss or damage suffered by the consumer because of the failure to comply with the guarantee –

within limits of reasonable foreseeability.  Our first point of construction is that that creates a right to recover a measure of damages, which is a full measure of damages, any loss or damage causally related and reasonably foreseeable.

The second point of construction is over the page, on section 275, that if you have a failure to comply with the guarantee and you have State or Territory law as the proper law of the contract, then a particular species of State or Territory law is picked up as federal law and it is the species of State law which limits or precludes liability for a breach of the term of the contract.  Our argument is that the law precludes liability if it denies its existence altogether and it limits liability if it places a cap on the liability.  The laws that are not picked up are State laws which direct a court as to how it is to assess a particular head of damages.

Your Honours, the only other matter we want to say in question 1 was in the original joint application book, the thicker one, volume 1, the legislative history is strongly supportive of this conclusion.  It appears in Justice Sackville’s judgment, from paragraph 352 onwards.  That is the predecessor provision of the Trade Practices Act.  And over at paragraph 353 to 354 what happened was that when this Court decided Wallis v Downard Pickford, which was the case about the intersection between the Queensland law limiting carriers’ liability to $20, the Commonwealth drafters suddenly realised that the professional standards legislation which had come in across Australia a number of years before, would probably now run foul of section 74(2A) because on a Wallis approach it would limit liability, which of course it did because it said, “If you are a member of a scheme you will not be liable for more than X dollars”.  That was the target of the entire exercise, and we submit the target was never an attempt to pick up Civil Liability Act damages laws.

Your Honours, that is the first point.  The second point, if your Honours could go then back to the small book at pages ‑ ‑ ‑

GORDON J:   Is this still on ground 1?

MR GLEESON:   No, I have finished ground 1, unless your Honours have questions.  I am now on ground 2, your Honours, which is only if we are wrong on ground 1, at pages 26 to 27, in section 11A we have the command to the court that it cannot award damages except in accordance with these rules.  Now, Justice Sackville has ruled and, for the purposes of this application, we do not disagree, that where it says “court” it should be read as “court, sitting in New South Wales” by reason of the Interpretation Act.

The argument he has not addressed or upheld is:  is there any other element within this command which is a matter or thing in and of New South Wales, subject to a contrary expression being expressed.  And we seek to identify the extra matter or thing primarily as the claim.  The claim is referred to in section 11A(2) and it is a claim for damages and damages are defined as personal injury damages relating to death or injury.

So the first way we put it is that the claim must be taken to be a claim which, viewed as a matter in tort, because that is the underlying substance of the scheme, would be governed by New South Wales law and the alternative way to put it is that the personal injury must occur in New South Wales.  Your Honours, the reason we propound that first interpretation is because of the matter raised by this Court but not decided in Insight Vacations.  I am referring to paragraph 33 of Insight Vacations, which is also set out at page 212 of the first large book.  The Court there raised a fundamental question of whether in that case Part 1A but in the present case Part 2 of the Civil Liability Act should be treated as applicable to claims, which is a matter of tort, would be governed by New South Wales law.

The Court had raised that same issue earlier, perhaps even more distinctly in paragraph 16 where the Court said:

It may be ‑ it is not possible to be certain ‑ that the unstated assumption of the provisions –

speaking here of the whole of the Civil Liability Act:

was that, because all kinds of claims, however based, were treated as if they were species of . . . negligence, the Act would apply [where]

New South Wales [law] would be the lex causae because it was the lex loci delicti.

That is the primary limitation that we seek to argue for, consistent with the Interpretation Act (NSW).  If it is correct, it produces a result consistent, we say, with section 118 in that you will not get differing results merely because you have chosen a particular court within the federation.

Your Honours, the only other matter in‑chief was Mr Williams has said if, for instance, the Court granted leave on one of our earlier questions you would not grant leave on the later questions.  We would submit that, at least, questions 1 to 3 are a package in this matter.  May it please the Court.

BELL J:   Thank you.  Mr Williams.

MR WILLIAMS:   I propose to deal with my friend’s ground 3 first, if I may.  There are three matters that we wish to advance in relation to that.  The first is a short one and that is that it was common ground in the Court of Appeal – one sees that at 378, page 414, of the application book – that the damages in question were:

for non‑economic loss for the purposes of s 16(1) of the Civil Liability Act.

So the matter was not argued before either the primary judge or the Court of Appeal, albeit that the position was reserved.

BELL J:   Yes.  That was because of the decision of the Court of Appeal in Insight Vacations was not before the High Court and ‑ ‑ ‑

MR WILLIAMS:   Quite, and I do not say that that is determinative in any way but it is relevant in terms of special leave.

BELL J:   By contrast, proposed ground 2 was taken in terms by counsel before the Court of Appeal.

MR WILLIAMS:   Yes, and not ground 1.  Well, sorry, ground 2 – the way that ground 2 was put before was rather different.  It was whether or not there was some extraterritoriality to the Civil Liability Act.  That was the way in which that issue was ‑ ‑ ‑

GORDON J:   It was dealing with whether there was loss or damage within New South Wales?

MR WILLIAMS:   It was whether the Civil Liability Act had extraterritorial operation.

GORDON J:   Correct.

BELL J:   Yes.

MR WILLIAMS:   That was the way that was put, whereas it is put rather differently now.

BELL J:   It is put somewhat differently but, nonetheless, at appeal book – that is, the original one – 403, at 350, one sees the record of Mr Abadee’s argument that his entitlement to claim damages for distress and disappointment was governed by the lex loci delicti.

MR WILLIAMS:   That is true.

BELL J:   Which is at the heart of ground ‑ ‑ ‑

MR WILLIAMS:   I will come to deal with that, if I may, when I am dealing with that ground.  I am not sure that I would characterise it in that way, but may I deal with that at that point.

BELL J:   All right.  Yes.

MR WILLIAMS:   There are three matters that we were wanting to put in relation to ground 3.  I put the first one.  The second is that the argument has insufficient prospects of success, given this Court’s decision in Baltic Shipping – I will take your Honours to that in a moment – and in light of the three other intermediate Court of Appeal decisions in the New South Wales Supreme Court, which we have dealt with in our written submissions.

Could I deal, briefly, with what we say about Baltic Shipping.  This is the question of whether damages of the nature with which we are concerned falls within the definition and in particular that it might fall within the definition of pain and suffering.

Justice Mason – sorry, I am dealing with – it is in a number of parts of the application book, so I am looking at the original application book, behind tab 6.  It is also in the amended application book.  The Chief Justice, at page 359 of the judgment, page 98 of the application book, commenced his discussion concerning the claim for damages for disappointment and distress at the foot of the page – that is page 359 of the judgment – and said this:

“Pain and suffering is a well‑known common law head of damage recoverable in actions for damages for personal injury, whether awarded for tortious conduct or conduct which constitutes a breach of statutory duty.  And, in some circumstances at least, a plaintiff can recover damages for injury to his or her feelings caused by tortious conduct –

and gives some examples.  Could I just commend, your Honours, to the balance of that paragraph?  So that is the commencement of the discussion, which indicates that the type of damage with which the Court was concerned was one that fell within that concept of pain and suffering.

The second passage is over the page, at page 362.  It is about point 7 on the page, commencing in the paragraph, “It is convenient”.  His Honour says:

First, damages for injured feelings were recoverable in the action for damages for breach of promise of marriage.  Secondly, it is beyond question that a plaintiff can recover damages for pain and suffering, including mental suffering and anxiety –

and he goes on to deal with some examples.  And there is a footnote, footnote (95):

(95)Damages for pain and suffering consequent upon physical injury caused by breach of contract may be awarded . . . and damages for pain and suffering may include compensation for injured feelings.

BELL J:   It is really over at page 363, is it not, at about point 7, where his Honour refers to the fact that:

plaintiffs have recovered damages for disappointment and distress caused by the breach of a contract to provide a stipulated holiday, entertainment or enjoyment, the object of the contract being to provide pleasure or relaxation.

That is the nub, as I understand, of the argument that is put against you.

MR WILLIAMS:   True enough, but all falling within the rubric of what his Honour was considering to be what is known at common law as pain and suffering.

BELL J:   Yes.

MR WILLIAMS:   I have given your Honour the references in the written submissions as to where the other Judges of the High Court agreed with that analysis.  We submit, given those passages and the unanimous decisions of the various courts of appeal who have considered it, the matter does not have sufficient prospects of success to warrant a grant of special leave.

There is a third point and that is in relation to the applicant’s argument, set out in paragraph 39 of its submissions, that seeks to draw upon Part 3 of the Civil Liability Act.  Part 3 of the Civil Liability Act deals with mental harm and the point to observe for present purposes is that there is a definition of, both in Part 3 of the Civil Liability Act that corresponds with the definition of personal injury in Part 2.  I am looking at the amended application book of authorities, page 77.

BELL J:   I am sorry, did you say you were in the book of authorities?

MR WILLIAMS:   I am sorry, this is the amended special leave book of authorities.  There was an earlier one as well.  I am not sure if your Honour ‑ ‑ ‑

GORDON J:   I do not think we have got them.

BELL J:   No.

MR WILLIAMS:   I am working off one that my friend has provided because it has more of the sections in it.  It would be convenient if they could hand it up.

BELL J:   Yes, indeed.

MR WILLIAMS:   I am sorry, I was not aware that your Honours did not have it.

BELL J:   Page 77, you said.

MR WILLIAMS:   Page 77 contains a definition of “personal injury”.  27(b) your Honours will see:

personal injury includes:

. . . 

(b)      impairment of a person’s physical or mental condition –

That is the same definition that one finds in Part 2 of the Act with which we are concerned.

KEANE J:   The type of damages that Chief Justice Mason was talking about in Baltic Shipping, that is not about impairment of mental condition.  It is a perfectly rational sound response to a breach of contract.  That is what he is talking about. 

MR WILLIAMS:   What his Honour was talking about was how one characterises that type of feeling for the purposes of common law and whether or not it falls within the description of pain and suffering as the common law would recognise it.  The relevance of that, of course, is that those are the words, or part of the words, that define the concept of non‑economic loss for the purposes of this Act.

When one goes to Part 2 of this Act it is divided up into, in Division 2, “Fixing damages for economic loss”, and Division 3 into “Fixing damages for non‑economic loss (general damages)”.  Your Honours see that on page 71, which contains the heading to Division 3.  The point that we seek to make is that when one goes back to what this Act is contemplating in terms of the differentiation between economic loss and non‑economic loss, it is intending to pull in and incorporate the concepts that common law described as general damages, including pain and suffering, loss of amenities of life and the like.  They are the submissions that we make on ground 1.

In relation to ground 2, I have dealt with the fact that this matter has not been raised before, but can I deal with the matters of substance.  We respectfully submit that it has insufficient prospects of success and the Court of Appeal correctly applied the approach that is to be derived from Insight Vacations in this Court and that the Court of Appeal ‑ ‑ ‑

BELL J:   When you say “correctly applied” the principles, at paragraphs 16 and 33 the court clearly leaves this issue open.

MR WILLIAMS:   I am coming to the fundamental misconception that underpins my learned friend’s submissions about this.  That is that this is all about – this Act is all about tort.  Could I show your Honour why that is wrong.  That is because there is a different treatment of the underlying causes of action for the purposes of Part 1A, which deals with negligence, and Part 3, which deals with mental harm – they sit together because they require negligence or quasi negligence by reason of the definition.  I am sorry, not the definition – by reason of the provisions which indicate where they are applicable.

Part 2 is very different.  Part 2 applies irrespective of whether the matter involves negligence or not, or quasi negligence or not.  One sees that from 11A(2).  One sees this on page 65 of the book.  So Part 2 personal injuries damages; 11A(2):

This Part applies regardless of whether the claim for the damages is brought in tort, in contract, under statute or otherwise.

One may rhetorically say, like a statutory guarantee of the nature that we are concerned with.  That is in contradistinction to the way in which Part 1A operates.  Section 5A(1):

This Part applies to any claim for damages for harm resulting from negligence, regardless of whether the claim is brought in tort, in contract, under statute or otherwise.

That is why I use the expression “quasi negligence”.  So Part 1A is about negligence or quasi negligence claims.  The same language is used in Part 3, dealing with mental harm.  Your Honours will see the identical language to Part 1A used in section 28(1).  That is on page 77.  Section 28(1): 

mental harm resulting from negligence, regardless of whether the claim is brought in tort, in contract, under statute or otherwise.

So for Parts 1A and 3(1) needs a negligence claim or a quasi negligence claim, in contradistinction to Part 2 in which the underlying basis of the cause of action is irrelevant.  It is any claim for damages brought in tort, contract, under statute or otherwise.  That is why we say that the essential ‑ ‑ ‑

GORDON J:   Do you say the premise for the ground is not made out?

MR WILLIAMS:   Yes, the whole argument is premised on the basis that in Insight, in the High Court, paragraphs 16 and 33, I think it is, the Court was there considering not the part we were concerned with.  It was concerned with Part 1, but in particular section 5N ‑ sorry, Part 1A in particular, dealing with section 5N, that required negligence or quasi negligence.  So that is why, we say, that ‑ ‑ ‑

BELL J:   At paragraph 16 the Court was looking more broadly, pointing out that the precise issue which is said to be raised here was not in issue in that case.

MR WILLIAMS:   That is true enough because Insight was concerned with Part 1A and not Part 2.  And although it does not expressly say so in paragraph 16, that is the context in which that discussion occurs.  So it may well be a – I should not say that – it is obviously an accurate description of the way in which the Act operates insofar as Part 1A is concerned but when one looks at the differences in the definitions and the field of operation of Part 2, the underlying premise, which is essential for my friend’s argument, we submit is not established.

That is why we say that in addition to the other reasons that we say this is not a convenient vehicle that this matter should not get special leave on that point.  That is all I wish to say about ground 2.  So that concludes what I needed to say in answer to my learned friend.  I am presuming your Honours want me to go next on the other issue but that is a matter for your Honours.

BELL J:   On ground 1?

MR WILLIAMS:   No.

GORDON J:   Ground 3?

MR WILLIAMS:   I dealt with ground 3 first.

BELL J:   No, you have addressed us on ground 3.  You have addressed us on ground ‑ ‑ ‑

KEANE J:   You mean your application?

MR WILLIAMS:   Yes, I mean my application.

BELL J:   So you have said everything you wish to say about grounds 1, 2 and 3?

MR WILLIAMS:   Grounds 2 and 3.  I have, thank you.

BELL J:   Yes.  Very well.  Is there something you want to put about your application?

MR WILLIAMS:   Yes, certainly.  I was not sure whether you wanted to hear about – in reply first.

BELL J:   I think the convenient course would be for us to hear from you on your application.

MR WILLIAMS:   The special leave questions that we seek to agitate are set out on page 507 of the application book.  That is the original – yes, 507 of the original application book.  We submit that they raise important questions of principle as to the extent to which services provided under the consumer guarantees are to be defined or characterised by reference to events beyond the control of service providers and by terms and conditions which describe the services which are to be provided.

BELL J:   So that that requires close attention to the brochure which was part of the contract, to the size of the font which contained the ‑ ‑ ‑

MR WILLIAMS:   The answer is no.  Can I seek to demonstrate why that is the case?

BELL J:   Yes, yes, do.

MR WILLIAMS:   May I come to that in the course of the argument to which I – the way in which I want to put it?  We submit that the fundamental error of the Court of Appeal was to treat the two matters which we say are the subject of the special leave application as inconsequential and irrelevant to the characterisation of the services, whereas it should have found them both relevant and consequential in determining the nature and the scope of the services that were to be provided.

The fundamental error of the Court of Appeal was describing the services to be provided, as it did at paragraph 190, appeal book 341, at a high level of generality.  I will just take your Honours to that in a moment.

GORDON J:   Do you mean 345, paragraph 190?

MR WILLIAMS:   I am sorry, I did.  My apologies.

GORDON J:   By reference to the brochure.

MR WILLIAMS:   Yes, my apologies.  So in defining the level of ‑ the services at that high level of generality the court failed to give consideration to the different range of services that were to be provided, firstly, in times of regular weather and river conditions and, secondly, in times where adverse weather and river conditions meant that on occasion parts of the European river system was unnavigable.

BELL J:   What is the point of principle involved in that contention of error?

MR WILLIAMS:   The point of contention is that if one defines services at such a high level of generality that – for instance, one is saying there is a – for providing a tour cruise, without delving down into how it is to be provided, where it is to be provided, what might – how it might have to be provided if adverse weather conditions interfere, then one obscures the nature of the inquiry about whether or not a consumer guarantee in connection with those services has been breached.

GORDON J:   So what is the question of principle, the question of what method ‑ ‑ ‑

MR WILLIAMS:   The question of principle is:  is it correct – as the Court of Appeal has done – to define or characterise the services without reference to, first of all, the terms and conditions upon which those services are delineated in a contractual document and, secondly, without reference to the change in services that might be required to accommodate events beyond the control of service providers.

So if a river cruise becomes impossible to perform is it correct to describe the services that contemplated in unusual circumstances that something else might have to happen as part of the services themselves and we say it is.  So if, in looking at the range of services that is being provided as part of a package tour of this nature, this is a 1,000 kilometre river system which is to be navigated over 15 days according to an itinerary, and the reasonable contemplation which the Court of Appeal talked about of parties in a situation such as that is that if adverse weather conditions came to interfere with precise itinerary or enjoyment in the fullest sense of how one was hoping to experience the cruise, that the services themselves would include appropriate temporary alternative arrangements to get around the problem.

So when one comes to look at the services one ought not to describe the services as if they existed without what the parties would have reasonably contemplated had they turned their mind to it, and they did, would happen, what would be provided in circumstances where it was impossible to go under a bridge because the river was too high.  If one characterises the services as merely cruising down the river and one gets to a situation where because of flooding or elevated water levels the vessel will not fit under a bridge, it cannot be right to say that the services which were required was to keep sailing straight into the bridge.  What the services contemplated in those circumstances were appropriate alternative temporary arrangements would be made until it was able to be safely continued on the route.

BELL J:   At paragraph 176 in application book 1 at 340, the Court of Appeal stated a test in relation to the consumer guarantees and it was:

to identify . . . the benefits and facilities the supplier is to provide to the consumer.

That being a task that:

requires an objective assessment of the dealings between the supplier and the consumer to determine the benefits or facilities the consumer can reasonably expect the supplier to provide in return for the consumer’s payment.

MR WILLIAMS:   Yes.

BELL J:   Do you take issue with the statement of the principle?

MR WILLIAMS:   Only to this extent ‑ and to the extent that the objective assessment of the dealings is intended to capsulate a wide inquiry about what occurred, we dispute that is necessary or appropriate.  For example, we say that this case started to – sorry, the error started in relation to this reasoning when the Court of Appeal examined in paragraphs 169 to 171 whether the definition of services required there to be a contract and held, of course, that it does not, and therefore reasoned that one could put aside the contract for the purposes of then defining what the services which were to be provided were constituted by.

GORDON J:   So you really take issue with the next sentence in 176, is that what you take issue with?

MR WILLIAMS:  That the ‑ ‑ ‑

GORDON J:   “The assessment is not confined to the terms of any contract”.

MR WILLIAMS:   What we take exception to is this, if I could put it slightly differently.  So far as the previous sentence is concerned, an objective assessment of the dealings, all that requires is to look at the two pages of the brochure and the contractual provisions that accompany it.  It is not a question of looking at a wider scope.  We say that because, as the Court of Appeal says, this can apply – these consumer guarantees can apply whether there is a guarantee or not.

BELL J:   Whether there is a contract or not.

MR WILLIAMS:   Sorry, a contract or not.  For example, if somebody was given this as a present or won it in a chook raffle, the analysis should still be the same as to what constituted the services that were to be provided.  How does one identify what are the services to be provided?  One looks at the particular provisions in the contract insofar as they delineate liability but insofar as they provide an identification of the services that are to be provided.  What one gets to when one goes down that route is this.  The actual two pages that the Court of Appeal referred to provide for, what we submit, is consistent with the reasonable expectation that the court was looking for ‑ ‑ ‑

BELL J:   So, this Court would be invited, effectively, as I understand it, to adopt the objective approach to the assessment of the benefits and facilities that it was understood were to be provided and then this Court would review the conclusion reached by the Court of Appeal based on the particular facts of this case?

MR WILLIAMS:   That is true enough, but could I just show your Honour why there is a consonance between that approach and the stepping back and looking at a reasonable contemplation approach which is also embedded in the particular paragraph.  Could I just go to the few pages that deal with the brochure and the terms and conditions?  It is page 308 of the application book.  Your Honours will see in paragraph 93, it is said that:

The first 39 pages of the Brochure were devoted to describing the benefits of all‑inclusive luxury European river cruising.  On pages 40 and following the Brochure provided detailed itineraries for a large number of individual cruises.

Just pausing there, the Court of Appeal has described the services as being whatever is set out on pages 40 and 41.  So, after quoting some of the matters that are set out in 94, there are two features on the brochure itself that require attention both to the terms and conditions but also, more importantly, to the possibility of disruption of the cruise.  This is on the very pages that the Court of Appeal has described as constituting the description of the services.  If one looks at the bottom of page 309, your Honours will see at the bottom of the pages, describing each individual cruise itinerary, the following words appear ‑ this is at 309:

“Disruptions to cruising and itinerary arrangements may occur.  For full terms and conditions please refer to pages 218 and 219.”

That is the pages that contain the special conditions.  Additionally, in paragraph 95, there is the second indicia because there is a map provided, that is that annexure that one finds at 427 of the application book:

“Map provided is a guide only.  Please refer to terms and conditions”.

So, this is your 1,000 kilometres of riverway with various cities along the way. 

GORDON J:   So then we come back to the question Justice Bell raised, we are looking at the font size of the brochure.

MR WILLIAMS:   No, not really, because ‑ well, first of all, if one is looking at individual circumstances, Mr Moore read through them or was taken through them, but leaving aside that, our point is that the description of what is to occur in times of disruption was not unusual, it is what would be consistent with the reasonable expectation of a passenger ‑ ‑ ‑

BELL J:   So, upon a full examination of all the facts and including the contractual documents, you invite the Court to come to a different conclusion but applying essentially the same objective test that was identified?

MR WILLIAMS:   No, because although the test is stated in the way it was, it was preceded by a section of the judgment that says one ignores the contractual provisions.  That is the problem and the vice.  The contractual provisions contain the alternate services or the variation to the services that would be provided in circumstances where the river was flooded.

Could I just make that good, briefly.  Page 313 – sorry, at the foot of page 311 it starts in 2.7.  We do not rely on these as contractual provisions per se but as a description of the services that are to be provided in the event of adverse weather conditions.  Your Honour sees in 2.7 at the bottom of the page:

We will use reasonable endeavours to provide the Tour You have booked . . . due to the nature of travel, it may not always be possible . . . to adhere strictly ‑

We go over to the second indicia, it is at page 313, 2.10(e):

Although We will use reasonable efforts to operate the Tour as close as possible . . . changes or substitutions may be necessary for reasons outside Our control.  These circumstances may include, but are not limited to:

(1)     road, river or weather conditions –

then, in 2.10(f), (g) and at 2.12 at the bottom of the page.  What we say about that is that the Court of Appeal wrongly approached this as if they were exclusion clauses that operated so as to derogate from what it interpreted the services to be.  We submit that when properly analysed one looks at the terms and conditions, not for that purpose, but for the purposes of characterising or delineating the services that are to occur and in this case in unforeseen – not unforeseen circumstances, in circumstances that were within contemplation although were not expected, there was a delineation of what was to occur and that that was consistent with what objectively reasonable expectations of the supplier ought be.  So, we submit ‑ ‑ ‑

GORDON J:   Is 175, in a sense, on page 339, the error you identify?  Is that the paragraph?

MR WILLIAMS:   Yes, it is in foot of – it is the bottom of 175 and it follows over into 177, the bracket, the paragraph with which we are concerned.  One sees at the foot of 175:

It can hardly be intended that a person who is to provide benefits or facilities to a consumer can avoid the statutory obligation . . . by . . . a skilfully worded standard form contract with the consumer which defines the services to be provided in a manner that effectively avoids any obligation to exercise due care and skill.

A similar statement in paragraph 177:

But the benefits or facilities a consumer can reasonably expect . . . are not to be delimited by exclusion terms –

That is the error, though, in treating these as exclusion terms rather than as an aid, indeed, a primary aid, to identify what the services are.

The consumer guarantees, of course, work on both goods and services.  In the case of goods, it is usually relatively easy to identify what the goods are.  In the case of services, some might be easy to identify ‑ the tradesman to fix your washing machine ‑ but others are rather more difficult to identify and one needs to look at the documentation that describes them in order to identify them.  That is our essential point.  What the Court of Appeal did was to ignore them because it took the view that those were just exclusion terms and to be ignored, whereas, in fact, they were sensible terms that accorded with reasonable expectations.

There is only one other thing that we would say and that is in relation to the applications in general.  If the Court thought it was appropriate to grant special leave to my learned friend in respect of one or more of his points, the Court ought also give leave to Scenic unless it thought the underlying argument was hopeless.  We say that for this reason ‑ ‑ ‑

BELL J:   Why would that be?

MR WILLIAMS:   We say this for this reason:  it might depend on which of the grounds your Honour gave leave but ‑ ‑ ‑

BELL J:   Let us look at grounds 1, 2 and 3.

MR WILLIAMS:   Yes.  Well, a fair‑minded observer, we would submit, would not be attracted to the proposition that a party who had not run its appeal points in the court below would obtain special leave, whilst a party

who had arguable points of appeal who had run them all the way through was precluded from dealing with its points.

BELL J:   That is a rather novel test for the grant of special leave, is it not?

MR WILLIAMS:   It is.  It might be, but it is one that we submit ‑ well, perhaps not, if one goes back to the principles that lie behind new points on appeal.  It is exceptional that they are permitted and permitted in this Court.  If those sort of exceptions are to be attracted then, we submit, that this is a fair way of dealing with the concomitant prejudice.

KEANE J:   Does that mean – that really depends upon this panel, this Court, accepting the proposition that at page 313, paragraph 2.10 is telling us something about the services that are to be provided rather than something about the liability for non‑provision of the services.

MR WILLIAMS:   Yes, but telling us something consistent with reasonable expectations which is the inquiry that the Court of Appeal said was the one that was necessary.  If the Court pleases, they are our submissions.

BELL J:   Yes, thank you, Mr Gleeson.

MR GLEESON:   Your Honours, on Mr Williams’ application, the only thing I would say in reply is that in those paragraphs he has taken you to the Court of Appeal, in fact, did look at the contract, they did not exclude it, and one can see that from paragraph 180.

GORDON J:   They just said it was not determinative.

BELL J:   Yes, they said it ‑ ‑ ‑

MR GLEESON:   They said it was not determinative.

GORDON J:   Relevant but not determinative.

MR GLEESON:   Relevant but not determinative.  In that paragraph 180, particularly over on page 342 they, in fact, looked at some of the clauses your Honour Justice Keane just raised with Mr Williams and took them into account in applying the test at paragraph 176.

GORDON J:   Just to be clear, it starts on the basis that it is not determinative at 175, relevant at 177, but we are going to look at them at 180.  Is that the way you put it?

MR GLEESON:   Yes.  So, there is no error in the test in 176 and the application of the test has, in fact, done the sorts of things Mr Williams wants the Court to do and both courts have rejected his application of the test.

Your Honours, on our application, I did not hear anything orally said on ground 1.  Grounds 2 and 3 were addressed and we submit grounds 2 and 3 in the light of what you have heard are still worthy grounds of special leave.  On ground 2, the question seems to have come down to whether Part 1A and Part 3 of the Civil Liability Act may have the unstated assumption the High Court referred to in Insight Vacations but not, it is said, Part 2.  That is really part of the question to determine what is the ‑ ‑ ‑

GORDON J:   Fields of operation of Part 1A and 3 versus 2.

MR GLEESON:   Yes, and as we put in our submission at page 12, the history of Part 2 very much suggests it, like the rest of the Act, was dealing with a crisis in public liability premiums in New South Wales for local councils and medical providers and it is quite unlikely that Parliament intended to be regulating the damages in matters governed by interstate or foreign law.  Your Honours, as to the ground 3, we clearly differ on how to read Baltic v Dillon and we would say Chief Justice Mason was not assimilating all this distress and damage to pain and suffering.  He was, in fact, doing the opposite.  May it please the Court.

BELL J:   Thank you, Mr Gleeson.

In application S298/2018, Moore v Scenic Tours Pty Ltd, there will be a grant of special leave to appeal limited to grounds 1, 2 and 3 in the amended application filed pursuant to the leave granted on 17 May 2019.

In application S299/2019, Scenic Tours Pty Ltd v Moore, we are of the opinion that no question of principle suitable for the grant of special leave is raised.  Special leave is refused with costs.

Adjourn the Court to reconstitute.

AT 11.20 AM THE MATTERS WERE CONCLUDED