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
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- AGLC
- Scenic Tours Pty Ltd v Moore [2023] NSWCA 74
- Case
- [2023] NSWCA 74
- Decision Date
CaseChat Overview and Summary
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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