Moses, G.I. v Thomas Cook Pty Ltd Summary

EETWEEN :

GERFLD

I S X X MOSES

First Rpplicant

LINDF. ELIZABETH MOSES

Second Applicant

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.

A. The first respondent pay the

applicants'

costs

o€

tndav's hearina and preparatlon

there for .

. .._

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

THOMFS c n w FTY. LIMITED

First Respondent

€OX J

1 - a :

rJm:	6 DECEMBER 1985

This is an applicatlon bp the

first

respondent

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

dlsmiss

the proceedinos as against the

first

respondent.

The second and third respondents have appeared. before me

by counsel. The second

respondent,

anticipation

The

arcnments

addressed

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;.

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.

.~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

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

llablllty

t o pay the amount. Whether they dld

haire such

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

contained

those

affidavits

constitutes

the-%hole

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

the

proceedings. that is. the respondent to the present

motion,

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

this

stage.

I therefors dismiss the

present application.

I will hear counsel on costs.

The case of Moses, G.I. v Thomas Cook Pty Ltd involved an application by the first respondent under Order 20 Rule 2 of the Federal Court Rules to dismiss the proceedings brought under Section 52 of the Trade Practices Act 1974. The applicants, Gerfld I S X X Moses and Linda Elizabeth Moses, alleged that the first respondent, Thomas Cook Pty Ltd, had engaged in misleading or deceptive conduct by advertising a free supply of a Hobicat sailing equipment in their brochures, which was not provided as advertised, leading to damages when the equipment was damaged during use. The second and third respondents were not parties to this motion.

The legal issue before the court was whether the proceedings should be summarily dismissed as they were virtually devoid of merit. The court had to consider whether there was a case for dismissal at that stage, given the allegations of misleading or deceptive conduct and the evidence presented. The court had to interpret the meaning of certain words in the brochure and their application to the case, particularly focusing on whether the damage to the Hobicat was an incident in its use or resulted from negligence by the applicants.

The court dismissed the application, concluding that there was not a case for dismissal at that stage. The court did not make any judgment on the facts or merits of the case but found that the applicants had presented sufficient evidence to warrant the continuation of the proceedings. The court ordered that the first respondent pay the applicants' costs of the hearing and preparation, return the exhibits, and stand over the matter until a later date for further directions.

Moses, G.I. v Thomas Cook Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established