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

[2019] HCATrans 108

[2019] HCATrans 108

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

GAGELER J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 17 MAY 2019, AT 11.35 AM

Copyright in the High Court of Australia

____________________

MR J.T. GLEESON, SC:   May it please the Court, in those two matters I appear with MR J.A. HOGAN‑DORAN for Mr Moore as the applicant in the first, the respondent in the second.  (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 matter; that is, the respondent in the first matter and the applicant in the second matter.  (instructed by SWS Lawyers)

GAGELER J:   Thank you, Mr Williams.  Gentlemen, before anyone speaks, if we turn in volume 2 of the joint application book to page 469 – that is, your application, Mr Gleeson – we are disposed to grant special leave to appeal on the ground identified as ground (a).

MR GLEESON:   May it please the Court.

GAGELER J:   Subject perhaps to being persuaded to the contrary by Mr Williams, we need to be persuaded that any of the other grounds raised in your application or in Mr Williams’ application is appropriate for a grant of special leave.

MR GLEESON: May it please the Court. Your Honours, on ground (b), could I inquire whether the Court has received our separate book of authorities which has been provided only because it is hard to find the sections conveniently in the main book? If I could ask your Honours to go to tab 2 at page 26, which is section 275 of the Australian Consumer Law; that is the alleged breach that takes one down into the Civil Liability Act. 

I want to say one thing at the end of this ground about whether 275 works at all, but even assuming it might take you into the Civil Liability Act, if your Honours could go then to tab 3 and go straight to section 11A on page 38, the issue tendered by ground (b) is this.  The Court of Appeal has ruled that section 11A is a command to a court sitting in New South Wales and that when a court is sitting in New South Wales as a territorial unit, if it is asked to award personal injury damages, and irrespective of whether the claim is in tort, contract, statute or otherwise, it must observe the limitations in this provision.

The effect of that is that if the proper law of that claim is the law of any part of Australia other than New South Wales, or indeed a foreign law, that is irrelevant because this is a command to a court in New South Wales.  That, we submit, is in error.  We submit the correct view is that the implicit limitation is that the Civil Liability Act applies where the proper law of the claim is otherwise the law of New South Wales.

GAGELER J:   That is not your ground, is it?

MR GLEESON:   And how that leads to the ground is the ground says:

where the relevant damage occurred outside of Australia –

GAGELER J:   They are very different words, Mr Gleeson.

MR GLEESON:   Your Honour, could I put squarely what we say is the ground we are trying to raise and I have told Mr Williams this?

GAGELER J:   Yes.

MR GLEESON:   Our real ground is that it is twofold.  Firstly, that when Insight Vacations was considered by this Court – this is at tab 5 of our book at page 75, paragraph 16 – this Court observed that there was an unresolved question about the Civil Liability Act as to how it applies, it said, extraterritorially.  It said there are two views:  it could be an implicit lex causae view or it could be it is a command of the courts of New South Wales. 

That is the primary question we seek to tender about the scope of this part of the Civil Liability Act: which of those two ways does it operate in? That is an important question beyond even the Australian Consumer Law. It applies in every case under the Civil Liability Act, and no other court in Australia has squarely looked at that other than this Court.  That is the first aspect to the question.

The second aspect, your Honours, goes back to section 275 itself, what I call the bridge. If your Honours could look at that on page 26, please, and compare that in volume 1 to the material about its history, which commences at page 403. At page 403 you have the predecessor provision, section 74(2A) of the Trade Practices Act, which worked neatly because it worked at a time when the Trade Practices Act implied these obligations into the contract. 

What that provision did, as you can see, is to take laws of the State which governed the contract by limiting liability and gave them an extended operation if those laws were the proper law of the contract in question.  In that sense, 74(2A) anticipated some other developments in the law and treated there as being a single conflict of laws in Australia and was designed to ensure that, wherever these claims were brought across the federation, you would get the same result because you would only pick up a New South Wales law and give it an extended application if New South Wales was otherwise the proper law of the contract.

You will see over the page the reason 74(2A) was introduced was to match professional standard scheme legislation around Australia, the point being to make sure that if New South Wales had limitations on liability under contract – e.g. for professionals – that someone could not get around that by a federal claim because of this provision.  That is what it was all about. 

GAGELER J:   Mr Gleeson, this is all heading to a reformulated ground 2.

MR GLEESON:   Yes. 

GAGELER J:   Can you tell us what that is?

MR GLEESON:   Yes, I can tell your Honours what that is.  The ground we seek to move upon is this:  the Court of Appeal erred in holding that Part 2 of the Civil Liability Act operated as a command to courts sitting in New South Wales so as to limit or preclude recovery of personal injury damages or damages for non‑economic loss even if the proper law would otherwise be the law other than New South Wales law.

GAGELER J:   The proper law of the contract.

MR GLEESON:   Of the contract or claim would be – the proper law of the contract or claim. 

GAGELER J:   So you have added the words “or claim” ‑ ‑ ‑

MR GLEESON:   Yes.

GAGELER J: ‑ ‑ ‑ to the statutory language in section 275?

MR GLEESON: That is the first aspect of this ground I want to run. The second aspect of the ground I want to run is that the Court of Appeal erred in holding that section 275 operates to pick up a law like section 16 of the CLA which is a command to courts sitting in a State irrespective of the lex causae.

Your Honours, there are really two aspects to the point.  The first is something about section 16.  Is it a command to a New South Wales court or does it have an implicit lex causae in it?  The second and deeper point is about 275.  When you look at 275, is it apt to pick up laws of a State which operate as commands to the courts of that State irrespective of the lex causae?  That is really the deeper point behind proposed ground (b).  The way we test that is this ‑ ‑ ‑

GAGELER J:   Before you get to that, this is very interesting.  It was not put to the Court of Appeal, though, was it?

MR GLEESON:   The answer to that is it was not put because everyone thought Insight Vacations in the Court of Appeal had disposed of the whole matter and the only place to raise these things was here.  That might have been too conservative an approach in the Court of Appeal.

GAGELER J:   That is ground (a), certainly, but ground (b), in its original form or as reformulated ‑ ‑ ‑

MR GLEESON:   What was put was as per its original form, that this is giving an extraterritorial application to section 16, and that is still within what we are putting, because we have findings of fact that the conduct occurred outside Australia and the injury or the distress occurred outside Australia.  So on any view of the lex causae, the lex causae would be a law other than New South Wales.  That is what Mr Abadee was seeking to run and that is what his Honour Justice Sackville rejected.

What I am seeking to raise about 275 – it really is quite fundamental – is if your Honours look at it on page 26 again, the only laws it picks up, as per the last two lines, are laws which:

limit or preclude liability, and recovery of any liability, for a breach of a term of the contract for the supply of the services.

The question we are really seeking to tender is:  can section 16 ever answer that description?  It cannot.  What 275 is seeking to pick up is if a State passes a statute which, as it were, modifies the common law of contract within the powers of that State, and if that is then the proper law of the contract, that State law will be given extended operation to cut down the federal claim.  The result of that, if I could just complete it is wherever the proceeding is then brought throughout Australia, you will get the same result on the federal claim.

GAGELER J:   If you are right about your reformulated ground (b) then you do not get to ground (a), is that right?

MR GLEESON:   That is correct.  That is right, yes, your Honour.  This is the anterior point and then ground (a) assumes that the bridge operates.  The real significance of (b) and why it is so important is if that is right, what 275 is doing, consistent with a unitary view of the federation and consistent with section 118, is saying, “As federal law, we will pick up certain State laws in a surrogate fashion provided by doing so we are not interfering with what would otherwise be the lex causae and therefore you will get the same result in every case”.

The problem with what Justice Sackville has done is if this claim had been brought in the Supreme Court of Victoria or perhaps the Federal Court sitting in Victoria, depending on one’s view of section 79, one would have applied the Wrongs Act (Vic), which has an express lex causae provision in it, and it is likely one would have got the exact opposite result. So what has happened with Justice Sackville’s view is it has fragmented the operation of the Australian Consumer Law, depending upon which part of the federation you bring the case in. That is why we submit that question is rather important.

Your Honours, should I move to question 3 then?  Is that convenient or do your Honours wish me to say more about (b)?

GAGELER J:   Yes.  You should move to your third ground.

MR GLEESON:   Thank you, your Honours.  The third ground is about service definition and it overlaps Mr Williams’ cross‑application.  In effect, there are three ways of looking at the services.  Justice Garling’s way was to say if you are sold a beautiful cruise in Europe, what is incidental to the cruise is the provision of such information and management prior to getting on board the cruise as may be relevant to the promised itinerary.  The Court of Appeal has said, no, prior to getting on board your service has not commenced and therefore federal law does not cut in. 

GAGELER J:   Were they quite so categorical?

MR GLEESON:   Yes, your Honour, is the answer.  The key answer to the question which might show that, as reformulated, you will find in volume 1 on page 455:

Q3:Did the ‘services’ extend to the supply of information to group members:

(a)before the embarkation of their respective cruises; and/or

(b)after the embarkation of their respective cruises?

A3:     (a)      No;

(b)      Yes.

. . .

Q10:Was Scenic under any obligation to provide information to group members about the prospect of significant disruption . . .

A10:   No. 

. . . 

Q12:   Was there a breach of the ‘Care’ guarantee . . .

A12:    . . .

There was no breach of the care guarantee in respect to cruises 1, 8, 9, 11 or 12 for any failure to inform group members on those cruises, prior to embarkation, of any likely disruptions ‑

It seems to be a fairly clear line:  before you get on the boat, the service has not commenced and therefore the care guarantee has not cut in.  The reason that is significant, we would submit, if I could just show your Honours at pages 162 to 168 in Justice Garling’s judgment, in relation to the unhappy cruise number 8, which starts on page 162, we can see from paragraph 648 that it was known to the cruise operator before the cruise was about to go:

that ships were stuck on the river and unlikely to move –

And:

that a significant component of the cruise would be undertaken as a motor coach tour by land.

Then in relation to 9, the even unhappier cruise 9, you will see at paragraph 672 that when the passengers arrived in Budapest there was not even a ship they could possibly get.

Now, the significance of Justice Garling’s approach is to say that it is an incidental part of the service to provide me with appropriate information and management, such that the duty cuts in before they get on the ship.  The Court of Appeal, we submit, has said that prior to getting on the ship the statute has not descended and the only way you can be protected is by arguing that what happened on the ship was in breach of one of the guarantees.

GAGELER J:   It is a bit hard to read them as saying that if you look at page 349, paragraph 201.

MR GLEESON:   Paragraph 201, your Honour?

GAGELER J:   Yes.

MR GLEESON:   We embrace that as indicating that what the Court of Appeal has said is if there has been a decision to cancel, obviously you must be informed.  We do not cavil with that.

GAGELER J:   Change of itinerary?

MR GLEESON:   Or to substantially change the itinerary.  What the case is about is in the period prior to that decision being made where there was information available, not about remote risks but information that tells you this cruise ought to be cancelled and must be cancelled, has the statute descended?  That is what Justice Garling found:  it had descended.  You will see that in 202 in the emphasised words.  It is an error to find that the services were supplied before commencement of the cruise, whereas in 203 the services after embarkation become of a broader character.

GAGELER J:   If you go back to paragraph 176, I think you find a statement of the approach that is being adopted to eventually arrive at those conclusions.  Is there an error of principle in the way in which that approach is formulated?

MR GLEESON:   I have to answer that question to your Honour, no, as to 176, because we embrace 176 as the complete answer to the cross‑application.  So at a level of principle, 176 is right.  So the question is ‑ ‑ ‑

KEANE J:   The difference between you and your opponent on this question really depends upon a close study of the facts and what is said in the brochures and the dealings between the parties, and resolving the question is almost a matter of impression after that study, is it not?

MR GLEESON:   It is difficult for me to deny that, your Honour. 

GAGELER J:   I think we understand the point. 

MR GLEESON:   The only thing I can add on that question is why does it matter to us, that third question?  The reason it matters is that if the care guarantee has descended prior to embarkation then one can explore breach by the failure to cancel, or give people the opportunity to cancel, and the remedy then might be a total failure of consideration the full cruise cost, which is a different and greater remedy to those which we have currently obtained under the other guarantees.  May it please the Court.

GAGELER J:   Thank you.  Mr Williams.

MR WILLIAMS: Could I deal first of all with the new argument insofar as I need to. We would submit that your Honours would not entertain the new argument in relation to section 275. It would require an amendment to the grounds, it would require an amendment to the special leave questions, and it would require some sort of articulation that we can probably deal with of the argument in support of it.

GAGELER J:   Are you saying you are not in a position to deal with the argument now?

MR WILLIAMS:   Yes. 

KEANE J:   In other words, you would be seeking an adjournment of this application?

MR WILLIAMS:   If my friend was to seek leave to amend, that would be the consequence, but he cannot deal with this on the run without amending his application, his grounds of appeal and his special leave questions because it is just not there, nor is any argument in support of it.

GAGELER J:   Mr Gleeson, what is your position in relation to an adjournment?  You have raised the stakes here.  You have reformulated ground (b) in a way which makes ground (a) redundant if you are correct on ground (b).

MR GLEESON:   Your Honour, we would submit that (a) and (b), although they are different ways home, are independently points worthy of this Court’s attention, so I do not wish to ‑ ‑ ‑ 

GAGELER J:   You would be having us decide ground (a) in circumstances where, on a proper analysis of the law as you would submit it to be, you do not get to those questions. 

MR GLEESON:   Your Honours will recall that in Insight Vacations in this Court a similar issue arose.  There were two questions.  One is:  do you ever get down to section 5N?  The second is:  if you do, what is the territorial limitation within it?  So that was a case where the Court considered it appropriate to take on both.  We have to respect Mr Williams’ point about – he says the new point he cannot meet today.

GAGELER J:   Correct.  So what he is in effect seeking is an adjournment which, in the ordinary course, would be at your cost given the late amendment.

MR GLEESON:   Yes.

GAGELER J:   Are you prepared to accept that?

MR GLEESON:   Your Honour, there is one other approach that we would respectfully ask you to consider, which is that your Honours grant leave on ground (a) and, in terms of the ground (b) matter, that question be deferred to the Court on argument after the argument has been fully exposed as to whether it is worthy of attention.

GAGELER J:   Mr Gleeson, you have made it very difficult for us to adopt that course given the reformulation of ground (b), which would render ground (a) ‑ if it were to proceed, it would be proceeding on a false premise.  It is an adjournment or nothing, I think, at the moment. 

MR GLEESON:   All I can say on that, your Honour, is the overlap between (a) and (b) was always there in the judgment below and was there in the application.  What we have sought to do is strengthen (b).

GAGELER J:   You have changed (b). 

MR GLEESON:   Then I accept what your Honour has said but we wish to press on with the opportunity of both grounds and we take what follows from it.

GAGELER J:   Very well. 

MR WILLIAMS:   Can I just say something before that occurs?

GAGELER J:   Yes, of course.

MR WILLIAMS:   It really is an application for leave to amend.

GAGELER J:   It certainly is, yes. 

MR WILLIAMS:   We would submit that it should not be granted.  Your Honours could take the view that it is an inappropriate matter for special leave in circumstances where it is brought on in this fashion at this late time, in circumstances where we are here to deal with the matters that have been properly articulated.

KEANE J:   That might be a compelling submission if one were able to say that there is nothing really in the proposed ground.  That would be a difficult conclusion to reach. 

MR WILLIAMS:   Yes.  It is obviously a matter of some complexity, the issue, and I accept that.

KEANE J:   Yes.

MR WILLIAMS:   That is why I am not able to deal with it on the run.

KEANE J:   Quite.

MR WILLIAMS:   But in circumstances where the applicant is seeking the Court’s indulgence in terms of the grant of special leave in relation to matters generally, and it comes along at the eleventh hour and totally reformulates or adds another ground, that is something that should not be met with an adjournment; it should be met with a dismissal of the application.  That is our primary position.  If your Honours are against us, there would need to be formal steps for the amendment and the filing of submissions and the like, and we would seek our costs on an indemnity basis.

GAGELER J:   The orders we are disposed to make are to the following effect:

1. Grant leave to Mr Moore to file an amended application for special leave to appeal amending proposed ground 1(b) of the application.

1. Stand the hearing of the applications over to the date for hearing of special leave applications in the June sittings of the Court.

1. Mr Moore is to pay Scenic Tours Pty Ltd’s costs of and incidental to the amendment and the adjournment of the hearing.

We would leave it to you gentlemen to agree between yourselves a timetable for the filing of consequential additional submissions

MR GLEESON:   Yes, we can do that, your Honour.  If it is possible to agree to August rather than June, could we also bring that to the Court’s attention?  That is my personal position, your Honours.

MR WILLIAMS:   I am not sure what the date was in June.

GAGELER J:   We are not sure.  Would August be preferable to both parties?

MR WILLIAMS:   Thank you, your Honours. 

GAGELER J:   We will amend the proposed order 2 to say “August” instead of “June”. 

MR WILLIAMS:   I am sorry, your Honours.  It just should not be on a date that we cannot do.  We are just not sure what that date is at the moment.  Could we leave it on the basis that ‑ ‑ ‑

GAGELER J:   To a date to be fixed.

MR WILLIAMS:   Thank you, your Honours.

GAGELER J:   All right.  Proposed order 2 will be “a date to be fixed”.

MR WILLIAMS:   Thank you, your Honour.

GAGELER J:   With that amendment, those are the orders we make.

MR GLEESON:   May it please the Court.

MR WILLIAMS:   May it please the Court.

GAGELER J:   Thank you.  The Court will now adjourn to reconstitute.

AT 12.04 PM THE MATTER WAS CONCLUDED