Nelson v Clarke
[2016] QCAT 494
•14 December 2016
CITATION: | Nelson & Anor v Clarke [2016] QCAT 494 |
PARTIES: | Melanie Nelson |
| v | |
| Chantal Clarke t/as SUP Wilderness Adventures | |
APPLICATION NUMBER: | MCDO203-16 |
MATTER TYPE: | Other minor civil dispute matters |
HEARING DATES: | 4 July 2016 and 23 August 2016 |
HEARD AT: | Brisbane |
DECISION OF: | Adjudicator Bertelsen |
DELIVERED ON: | 14 December 2016 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The Respondent pay to the Applicants the sum of $2,544.90. |
CATCHWORDS: | Consumer law – tour booking fee – tour operator’s cancellation – right to refund of prospective tour cost |
APPEARANCES: | |
APPLICANT: | Melanie Nelson |
RESPONDENT: | Chantal Clarke |
REASONS FOR DECISION
Application
By application filed 4 February 2016, Melanie Nelson and Jennifer Fitzpatrick seek a refund of monies paid for a Cambodian adventure trip ($1,163.75 each), the additional cost incurred for an alternative trip and interest and costs associated with this application, a total of $7,431.72.
Background and evidence
On 10 July 2015, Ms Nelson signed a booking form to participate in an exploratory and adventure tour in Cambodia commencing on 19 November 2015 at Siem Reap and continuing for seven days and six nights. The tour, limited to 10 people, included a three day expedition along the Sankar river, and three days exploring the ruins of Angkor Wat and Angkor Thom and involved rudimentary travelling conditions.
The booking form, under the heading ‘Adventure Travel’ stated:
Please understand that the style of trip you are embarking on is exploratory and adventurous by nature. There are aspects that are out of our control and things are not always likely to go as planned. We do not arrange organised tours and we consider unexpected occurrences part of the joy of discovering the world. Itineraries are deliberately kept fluid to preserve the sense of freedom that usually only comes with independent travel.
Under the heading, ‘Appropriate behaviour’ it was stated:
For your own safety and that of others around you, we ask that you abide by the instructions of the leadership team and guides at all times. We have zero tolerance of travellers who disrespect of the local people [sic], cultures, environment or laws. As such, we ask that you wear a culturally appropriate choice of clothing. Alcohol/substance abuse or violence will not be tolerated. Should you fall foul of the law in a country that we travel in or through, we will contact your next of kin and embassy or consulate but after that you will be on your own.
Under the heading ‘Travel Insurance’ it stated:
It is a requirement for all of our tours that you hold and provide documentation of comprehensive travel insurance with evacuation cover. We often operate in very remote regions of the world where medical assistance may be very limited. If you have insurance cover with your credit card, please check the conditions carefully and provide a copy of the policy. Please ensure stand up paddle boarding is included in the activities covered and any other activities you plan to participate in during your travels.
Under the heading ‘Modifications & Cancellations’ it stated:
SUP Wilderness Adventures reserves the right to alter, modify or cancel arrangements in any way necessary in the interest of the safety and comfort of expedition members, especially in the case of circumstances beyond our control.
Under the heading ‘Limitation of liability & responsibility’ it stated:
SUP Wilderness Adventures acts as an amalgamating distributor of hotel, contractor and other tourism operator’s products. We assume no responsibility for injury, damage, accident, death, loss, delay or irregularities that may be caused to persons or properties by our staff or the staff or guests of those whose services and products we use.
Under the heading ‘Statement’ it stated:
I hereby confirm the above information provided to me is correct and true. I have read and understood the liabilities and responsibility section detailed above and the booking terms & conditions (as set out online at I accept them and declare that I will not be travelling contrary to medical advice.
On 15 September 2015, Ms Fitzpatrick signed an identical booking form.
The booking terms and conditions referred to in the booking form stated at the outset:
We strongly recommend that you speak with us before making payment and that you read the trip notes relating to your trip to ensure that you understand the itinerary, style and physical demands of the trip you are undertaking.
Under the heading ‘Our contract’ it stated:
By booking a trip with us you are deemed to have agreed to these booking conditions (which constitutes the entire agreement between you and us) and if your booking is accepted by us, it will be on this basis. The services to be provided are those referred to in your booking confirmation invoice.
Under the heading ‘Acceptance of booking and final payments’ it stated:
If we accept your booking we will issue a confirmation invoice. A contract will exist between us from the date we issue the confirmation invoice or if you book within 7 days of departure, the contract will exist when we accept your deposit. Please refer to your booking confirmation invoice for details regarding instalment payment obligations and final payments.
Under the heading ‘Cancellation by the traveller’ it stated:
If you cancel some or all portions of your booking, cancellation fees will apply. A cancellation will only be effective when we receive written confirmation of the cancellation. If you cancel a trip:
· Two calendar months or more prior to departure we will retain the 20% deposit;
· Between two calendar months prior to departure and one calendar month, we will retain 50% of the total booking cost; and
· One calendar month or less prior to departure we will retain 100% paid by you in connection with the booking. Any Kitty payments however, will be refunded in full.
Under the heading ‘Flexibility’ it stated:
You appreciate and acknowledge that the nature of this type of travel requires considerable flexibility and you should allow for alternatives. The itinerary provided for each trip is representative of the types of activities contemplated, but it is understood that the route, schedules, itineraries, amenities and mode of transport may be subject to alteration without prior notice due to local circumstances or events.
Under the heading ‘Change of itinerary’ it stated:
While we endeavour to operate all trips as described, we reserve the right to change the trip itinerary. Please refer to the private Facebook group page for your trip for the most recent updates to your itinerary.
Under the heading ‘Authority to act’ it stated:
Our group trips are run by a group leader. The decision of the group leader is final on all matters likely to affect the safety and well-being of any person participating in the trip. If you fail to comply with a decision made by a group leader, or interfere with the well-being or mobility of the group, the group leader may direct you to leave the trip immediately, with no right of refund. We may also elect not to carry you on any future trips booked. You must at all times comply with the laws, customs, foreign exchange and drug regulations of all countries visited, and you also agree to travel in accordance with our responsible travel guidelines.
On 11 November 2015, Ms Nelson and Ms Fitzpatrick’s booking was cancelled with no refund being made.
Ms Nelson and Ms Fitzpatrick asserted that the terms and conditions had been amended as of 10 November 2015 to include a clause 19 an appropriate behaviour clause, which stated amongst other things ‘failure to act in a respectful manner or behaviour that negatively affects the group/trip leader will result in the cancellation of your booking/expulsion from the group with no right of refund…’.
They said that Ms Clarke, in revoking their right to participate in the trip, relied on the appropriate behaviour clause in the SUP Wilderness Adventures booking form, and on clause 19 Appropriate Behaviour in the updated terms and conditions.
Ms Clarke agreed that the version of the terms and conditions originally applicable to Ms Nelson and Ms Fitzpatrick was updated on 10 November 2015, but said she was not relying on that clause of the updated terms and conditions. She said that both Ms Nelson and Ms Fitzpatrick participated in phone interviews prior to being invoiced and that in May 2015 they were both added to a private Facebook page which had been created on 2 March 2015, where all trip participants were provided with updates and reminders, and where discussion could take place as between trip participants.
Ms Clarke said:
a)Both Ms Nelson and Ms Fitzpatrick were sent welcome emails, invoices and booking forms, which in turn referred to the booking terms and conditions;
b)That those terms and conditions, an FAQ (frequently asked questions) document and participant waiver were emailed to both Ms Nelson and Ms Fitzpatrick, were made available on the private Facebook group page and were permanently available on the SUP Wilderness Adventures website;
c)Both Ms Nelson and Ms Fitzpatrick acknowledged in the booking form that participating in the trip required them to sign and return to the operator the required documentation.
Ms Clarke went on to assert:
a)That Ms Nelson and Ms Fitzpatrick agreed to the terms and conditions relating to cancellation;
b)That on 31 October 2015, some three weeks prior to trip commencement date, they raised a number of concerns which she attempted to address without success;
c)That the disruption occasioned to the trip group became damaging so she removed both Ms Nelson and Ms Fitzpatrick from the private Facebook group page, but still informed them both of pertinent announcements directly.
Ms Clarke said she attempted to contact Ms Nelson and Ms Fitzpatrick by phone on 4, 5, 8, 10 and 11 November only to be met with threats of legal action. She also said that it had become clear that Ms Nelson and Ms Fitzpatrick had no intention of following instructions or participating in a manner that would not be detrimental to the wellbeing, safety and harmony of the other paying participants.
In particular, it was Ms Nelson and Ms Fitzpatrick’s refusal to sign the waiver of liability form required by SUP Wilderness Adventures that Ms Clarke felt she had no choice but to cancel their booking. That waiver of liability whereby trip participants gave up important legal rights, including the right to sue, was provided to the trip group in July, August and September of 2015.
The FAQ document provided to Ms Nelson and Ms Fitzpatrick contained a number of questions and answers, one of which was:
Q. What if I don’t agree with your booking terms & conditions or don’t want to sign your waiver?
If you have an issue with our documents, then please don’t book. Our terms & conditions were written a [sic] well respected legal firm (not us) and so were the waiver and booking form clauses. By paying your deposit, you are entering into a legally binding agreement and the terms & conditions apply. Signing the booking form and waiver are a requirement of our insurer as they form part of our agreed safety policies and procedures. You are welcome not to sign, but this will mean we are unable to have you participate in our adventure.
Ms Clarke’s email of 11 November 2015 stated as follows:
Your behaviour to date (e.g. 31 Oct & 3, 4, 5, 10 and 11 Nov) has clearly demonstrated that you intend being a disruptive influence on the upcoming SUP Wilderness Adventure in Cambodia (Nov 20 to 26 2015).
Your chosen course of action has demonstrated that you have no intention of abiding by instructions given by/taking direction from myself as group leader.
Your actions have left me with little doubt that you intend to continue behaving in a manner that will adversely impact the wellbeing of the group and may even cause offence to our host country.
Further your refusal to sign the waiver of liability leaves me pondering the likelihood that you may interfere with the groups movements and safety.
I will not expose other expedition members to the risk of such and so, in accordance with the paragraph titled Appropriate Behaviour (pg 3, SUP Wilderness Adventures booking form), signed and dated by you on 10 July 2015; and in accordance with clause 19 Authority to act (SUP Wilderness Adventures terms & conditions), this email is to inform you that your right to participate in the trip has been revoked.
You are not entitled to a refund.
Should you choose to turn up at the designated meeting point in Cambodia expecting to join the group, you will be excluded from participation.
I have again consulted with the Office of Fair Trading, the ACCC and my lawyer Steve Latham of Minter Ellison regarding this matter.
Conclusions
Ms Clarke’s email of 11 November 2015 revoked Ms Nelson and Ms Fitzpatrick’s participation in the Cambodian tour with no entitlement to a refund of the tour cost. Her primary reasoning was that Ms Nelson and Ms Fitzpatrick demonstrated that they had no intention of abiding by instructions given by/taking direction from her as group leader and that she had little doubt that Ms Nelson and Ms Fitzpatrick’s behaviour would adversely impact the wellbeing of the travel group. In addition, Ms Nelson and Ms Fitzpatrick’s refusal to sign a waiver of liability form would have risk consequences for her.
Ms Clarke relied firstly on the booking form appropriate behaviour clause, which relevantly stated ‘For your own safety and that of others around you we ask that you abide by the instructions of the leadership team and guides at all times’. Clearly, that portion of that clause was directed to conduct during the course of the prospective tour. The rest of that clause spoke about respect for local people, choice of clothing, alcohol, falling foul of local law and consequences. Once again, that was clearly directed to conduct whilst on tour. The clause did not address cancellation of prospective participation by SUP Wilderness Adventures, nor did it make any mention of forfeiture of tour cost.
Secondly, Ms Clarke relied on the original terms and conditions, clause 19 ‘Authority to act’ as they applied to Ms Nelson and Ms Fitzpatrick. That clause stated the ‘decision of the group leader is final on all matter likely to affect the safety or well-being of any person participating in the trip’. Once again, that portion of the clause is directed to matters that might arise during the course of the trip. That is obviously so because the very next sentence talks about failure to comply with a group leader decision, or interfering with the well-being or mobility of the group, leading to a direction to leave the trip immediately with no right of refund. Here, the commencement of the trip was still some nine days away.
The clause goes on to say that SUP Wilderness Adventures ‘may also elect not to carry you on any future trips booked’. That is to say, your conduct on this trip may well impact on whether the tour operator will have you on board on future trips.
The Authority to act clause falls far short of being able to be construed as pre-tour authorisation to cancel a booking prior to commencement and to retain the tour cost.
The refusal to sign the waiver of liability form may well have disentitled Ms Nelson and Ms Fitzpatrick to participate in the tour. SUP Wilderness Adventures’ own FAQ document makes it clear that not signing the waiver would result in Ms Nelson and Ms Fitzpatrick being ‘unable to have you participate in our adventures’. Once again, there is no mention of forfeiture of tour cost.
The refusal to sign the waiver of liability left Ms Clarke pondering Ms Nelson and Ms Fitzpatrick’s possible future undesirable conduct, but one will never know because it never occurred. As for demonstrating that Ms Nelson and Ms Fitzpatrick had no intention of abiding by instructions, that assertion was based on an apparent conclusion about possible future conduct.
There was no compelling evidence of intimidation, bully or threatening conduct. At worst, it was a testy misaligned encounter between Ms Nelson and Ms Fitzpatrick with Ms Clarke over a period of some months. Ms Clarke may well have felt justified in her own mind cancelling participation, but the consequence of that, presented as an email virtually ordering Ms Nelson and Ms Fitzpatrick off the tour, was that they were both entitled to a refund of their tour cost. In short, they were entitled to be refunded monies paid for that which they never got.
As for Ms Nelson and Ms Fitzpatrick’s partaking of an alternative tour that was more expensive, that was their decision. They had any number of options open to them.
The claim is allowed at the tour cost, $1,163.75 x 2 = $2,327.50, interest at the QCAT Calculator rate for the period 11 November 2015 to 23 August 2016 - $108.70, and the application filing fee of $108.70, a total of $2,544.90.
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