Moses, G.I. v Thomas Cook Pty Ltd

[1985] FCA 616

EETWEEN :

GERFLD I S X X MOSES

First Rpplicant

LINDF. ELIZABETH MOSES

Second Applicant

>B :

THOMAS qYOOK FTY. LIEIITEI?

First Respondent.

5ecnnd Responient

Third qespondent

MINUTE OF 0RDE:F

JTJEGE : FOX J .

DATE OF nPI?EF: 6 DECEMBEF? 19R5

HHERE MADE: SMITEY.

THE COURT OPDERS THAT:

1. The motion be dismissed.

.7

A. The first respondent pay the applicants' costs o€

tndav's hearina and preparatlon there for .

. .._

2.

3 - .

3. The exhibits be returned.

4. The matter stand over until Friday 13 December for

directions.

N o t e :

Settlement and entry of orders is dealt with in

9rder 36 of the Federal Court Rules.

BETWEEN :

GEFALD ICE3-C t4WES

First 9ppllcant

LIMDA ELIZABETH MOSES

Second Applicant

>m :

THOMFS c n w FTY. LIMITED

First Respondent

€OX J .

1 - a :

rJm: 6 DECEMBER 1985

This is an applicatlon bp the first respondent in

proceedinus brouaht under s.52 of the Trade Practices Act 1?74.

:-. .

The matter has alreadv been beFore the court twice for

directions. On an earlier occasion the statement of claim was

found to be qulte defective and recently an amended statement of

claim has been filed to which no obiection has been taken.

The application is made under Order 20 rule 2 and not m

reliance upon Order 11 rule 16. which is the provision upon vhich

reliance was oriuinally placed'in the notice of motion Ghxh is

now said to be before me. However. no nbiection is taken to the

informality and I now reqard myself as considerina the notice of

motion as one under the Order m d ride cchlch T. have first

mentioned to dlsmiss the proceedinos as against the first

respondent.

The second and third respondents have appeared. before me

by counsel. The second respondent, In anticipation nf The

arcnments to be addressed to me by counsel for the flrst

respondent. sought leave %o uo at an early staae. and he was

excused. Counsel for the third respondent has remalned but has

contented himself with sayinu that he also concurs wlth the

arguments put by the first respondent. Strictly speakmu. the

position as I understand it. and as I understand counsel have

aareed. 1 s that the second and third respondents are not parties

t o this notice of motion.

3. .

relatincr to Vanuatu. Tahiti and other South Pacific islands. said

that certain recreational sailinrr equipment. known as a Hoblcat. was to be supplied or would be supplied free of charae by a hotel which was advertised in the brochure.

What happened. as the evidence so far discloses. is that

the Hnbicat vas taken out ba the applicant;. It r3.v Into yhat

:as called in the applicant's evidence a freak wind scfuall. I t

xas thus ,driven onto some rncks and dsmaaed.

c

.~ubsequmtl-= the ncners of the craft, -&,G -2ere a l z c . as

I understand. the omers cf the hotel. sourrht payment fnr che

damaae from the appllcants. As they vere about to l?avp the

island. they were compelled to pay the amount, over protsst.

The amount is a small one. about $1250. It is not clear

from the evldence =hether It was alleaed by the owners of the

Hoblcat that the applicants or one of them had been neallnenr.

Whatever was the proper basls of the claim, it seems to have beitn

at all events assumed nn the part of some that thev had a

llablllty t o pay the amount. Whether they dld haire such a

liability is not clear.

The evidence which a; been tendered bl; the appllrant m

the present motion, that is tg sa:;, the first, respondent. 1 s

exclusively that prepared and filed on behalf o f the appllcants.

and counsel for the applicants has sald that the macerlal

4.

3.

contained in those affidavits constitutes the-%hole of the

conduct relied upon in their action, so far at least as it

concerns the first respondent.

It does seem to me. however. that there 1 s a real

question as to whether counsel for the appllcants in the

proceedings. that is. the respondent to the present motion, is

correct when he says that this accident to the Hobicat was just

an incident in its use . It may be. as I have already mdicated,

that damaqe flowed from the neuliuence of the first applicant.

The question, as I have Indicated. turns around the

meaninu of a few words In the brochure, and, more particularly.

thelr application in this case.

The cases show that an action should not be dismissed

summarilv unless the case made for its dismissal 1 s vlrtuallv so

Illear as to be bevond xqument. In the present case I 'do not

;ant to say anpthina about the facts or the merlts on nne side or

another. My conclusion is that there is not a case for dismissal

of the proceedlnas at this stage. I therefors dismiss the

present application. I will hear counsel on costs.