Scenic Tours Pty Ltd v Moore

Case [2023] NSWCA 74


Court of Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Scenic Tours Pty Ltd v Moore [2023] NSWCA 74
Hearing dates: 26–27 October 2022
Date of orders: 20 April 2023
Decision date: 20 April 2023
Before: Ward P at [1]
Kirk JA at [2]
Griffiths AJA at [48]
Decision: (1) To the extent necessary the applicant/appellant has leave to appeal.
(2) The parties may file and serve submissions of no more than 5 pages relating to what final orders the Court should make, together with any relevant supporting materials, within 14 days of these orders.
(3) The parties may file and serve submissions in reply of no more than 3 pages within 21 days of these orders.
(4) Final orders will be made on the papers and without a further oral hearing.
Catchwords:

CONSUMER LAW – Enforcement and remedies – Remedies relating to statutory guarantees – Representative proceedings against supplier of services – Breach of statutory guarantees under ss 61(1) and 61(2) of the Australian Consumer Law – Availability of defence s 61(3) of the ACL – Assessment of compensation for reduction in value of services under s 267(3) of the ACL and damages for distress and disappointment under s 267(4) of the ACL – Whether damages recoverable for cost of airfares under s 267(4) of the ACL

Legislation Cited:

Competition and Consumer Act 2010 (Cth) Schedule 2 – Australian Consumer Law ss 61, 64, 64A, 265, 267, 268, 269, 272

Civil Liability Act 2002 (NSW)

Civil Procedure Act 2005 (NSW)

Supreme Court Act 1970 (NSW)

Cases Cited:

123 259 932 Pty Ltd v Cessnock City Council [2023] NSWCA 21

Alameddine v Glenworth Valley Horse Riding Pty Ltd (2015) 324 ALR 355; [2015] NSWCA 219

Baltic ShippingCompany v Dillon (1993) 176 CLR 344; [1993] HCA 4

Baxter v Obacelo Pty Ltd (2001) 205 CLR 635; [2001] HCA 66

Capic v Ford Motor Co of Australia Pty Ltd [2021] FCA 715; (2021) 154 ACSR 235

Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64; [1991] HCA 54

Graham Barclay Oysters Pty Ltd v Ryan (2000) 102 FCR 307; [2000] FCA 1099

Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; [2002] HCA 54

Haines v Bendall (1991) 172 CLR 60

House v The King (1936) 55 CLR 499; [1936] HCA 40

McRae v Commonwealth Disposals Commission (1951) 84 CLR 377; [1951] HCA 79

Meetfresh Franchising Pty Ltd v Ivanman Pty Ltd [2020] NSWCA 234

Milner v Carnival plc (t/as Cunard) [2010] 3 All ER 701; [2010] EWCA Civ 389

Moore v Scenic Tours Pty Ltd (No.2) [2017] NSWSC 733

Moore v Scenic Tours Pty Limited (No 3) [2017] NSWSC 1555

Moore v Scenic Tours Pty Ltd (No.4) [2022] NSWSC 270; (2022) 160 ACSR 232

Moore v Scenic Tours Pty Ltd (2020) 268 CLR 326; [2020] HCA 17

Moran v McMahon (1985) 3 NSWLR 700

Murphy v Overton Investments Pty Ltd (2004) 216 CLR…

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Details
AGLC
Scenic Tours Pty Ltd v Moore [2023] NSWCA 74
Case
[2023] NSWCA 74
Decision Date

CaseChat Overview and Summary

Scenic Tours Pty Ltd appealed to the Court of Appeal of New South Wales against a decision of the primary judge concerning alleged breaches of statutory guarantees under the Australian Consumer Law (ACL). The proceedings were brought by Mr. Moore, representing a class of consumers who had purchased tour packages from Scenic Tours. The core of the dispute involved claims that the services provided by Scenic Tours did not meet the statutory guarantees of fitness for a particular purpose and that the services were not rendered with due care and skill, as stipulated by sections 61(1) and 61(2) of the ACL.

The Court of Appeal was required to determine several key legal issues. Firstly, it had to consider whether Scenic Tours could avail itself of the defence provided by section 61(3) of the ACL, which relates to circumstances where the consumer did not rely on the supplier's skill or judgment. Secondly, the Court needed to assess the appropriate method for calculating compensation for the reduction in the value of the services under section 267(3) of the ACL. Finally, the Court had to determine the availability and quantum of damages for distress and disappointment under section 267(4) of the ACL, including whether the cost of airfares could be recovered under this provision.

The Court's reasoning, as indicated by the subsequent orders, suggests a nuanced approach to the assessment of remedies. While the precise reasoning on the application of section 61(3) and the calculation of compensation under section 267(3) is not detailed in the provided text, the Court's decision to allow further submissions on final orders implies that the appeal was not dismissed outright. The need for submissions on damages for distress and disappointment, and specifically the recovery of airfare costs under section 267(4), indicates that these were significant points of contention and likely central to the Court's deliberations on the scope of remedies available for breaches of statutory guarantees.

The Court of Appeal granted leave to appeal to the extent necessary and ordered that the parties file and serve submissions regarding the final orders to be made, along with supporting materials, within 14 days, with replies due within 21 days. Final orders were to be made on the papers without a further oral hearing.

Orders

Orders of the court

(1) To the extent necessary the applicant/appellant has leave to appeal.

(2) The parties may file and serve submissions of no more than 5 pages relating to what final orders the Court should make, together with any relevant supporting materials, within 14 days of these orders.

(3) The parties may file and serve submissions in reply of no more than 3 pages within 21 days of these orders.

(4) Final orders will be made on the papers and without a further oral hearing.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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