Scenic Tours Pty Ltd v Moore

[2018] NSWCA 238

Court of Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Scenic Tours Pty Ltd v Moore [2018] NSWCA 238

Hearing dates:

14, 15, 16, 17 May 2018

Decision date:

24 October 2018

Before:

Payne JA at [1];
Sackville AJA at [2];
Barrett AJA at [410]

Decision:

1.   Grant the appellant (Scenic) leave to appeal.
2.   Direct Scenic to file a notice of appeal in the form of the draft amended notice of appeal within seven days.
3.   Allow the appeal in part.
4.   Set aside Order 1 made by the primary Judge on 15 November 2017.
5.   The respondent’s (Mr Moore) claim for damages for disappointment and distress pursuant to s 267(4) of the ACL be dismissed.
6.   Direct that on the further hearing of the matter before the primary Judge, his Honour determine Mr Moore’s claim for compensation for reduction in value of the services pursuant to s 267(3)(b) of the ACL in conformity with these reasons for judgment.
7.   Set aside Order 2 made by the primary Judge on 15 November 2017.
8.   The Group Members’ claims for damages for disappointment and distress pursuant to s 267(4) of the ACL be dismissed.
9.   Direct the parties to file within fourteen days agreed Common Questions and Answers thereto that give effect to these reasons for judgment, insofar as they address the claims of Group Members to compensation and damages by reason of Scenic’s breaches and alleged breaches of the Consumer Guarantees.
10.   In the absence of agreement, direct that
(a)   Scenic file within 14 days its proposed Common Questions and Answers thereto, together with written submissions in support not exceeding five pages in length; and
(b)   Mr Moore file within a further 14 days his proposed Common Questions and Answers thereto, together with written submissions in support not exceeding five pages in length.
11.   Set aside Order 2 made by the primary Judge on 31 August 2017.
12.   Order that the costs of the proceedings in the Common Law Division be determined by the primary Judge.
13.   Order that Mr Moore pay 50 per cent of Scenic’s costs of the application for leave to appeal and of the appeal.
14.   If Scenic seeks costs orders other than Orders 11, 12 and 13, it should file and serve written submissions as to costs within 14 days, such submissions not to exceed five pages in length.
15.   If Mr Moore seeks costs orders other than Orders 11, 12 and 13 or if he wishes to reply to any submissions on costs made by Scenic, he should file and serve written submissions within 28 days, such written submissions not to exceed five pages in length.
16.   If Scenic does not file written submissions seeking a variation to Orders 11, 12 and 13, it should file and serve written submissions in reply to any submissions by Mr Moore within a further 14 days.

Catchwords:

REPRESENTATIVE PROCEEDINGS – representative proceedings brought by Plaintiff on behalf of passengers (Group Members) who paid for and travelled on European river cruises supplied by the defendant – a number of the cruises were seriously disrupted by high water levels on the rivers – Plaintiff seeks compensation for loss of value and damages for disappointment and distress for himself and Group Members – whether proceedings satisfactorily identified common questions of law or fact

 

CONSUMER PROTECTION – Plaintiff relies on the Defendant’s failure to comply with the Consumer Guarantees in ss 60 and 61 of the Australian Consumer Law (ACL) – whether the “services” to be provided by the Defendant for the purposes of the Consumer Guarantees were co-extensive with the defendant’s contractual obligations – whether services included provision of pre-embarkation information to passengers as to river conditions – whether the services provided by the defendant on the cruises were fit for the particular purpose for which Plaintiff and Group Members acquired them (ACL s 61(1)) – whether the services were not of a nature and quality as could reasonably be expected to achieve the result Plaintiff and Group Members wished the services to achieve (ACL s 61(2)) – whether primary Judge correctly applied the test for assessing compensation for lost value (ACL s 267(3)(b))

DAMAGES – whether Plaintiff and Group Members precluded from claiming damages for disappointment and distress by s 16 of the Civil Liability Act 2002 (NSW) (Civil Liability Act) – effect of s 275 of the ACL in picking up and applying the Civil Liability Act as a surrogate federal law – whether s 16 of the Civil Liability Act capable of applying to claims for non-economic loss where the claims arise from conduct outside Australia

Legislation Cited:

Acts Interpretation Act 1901 (Cth)
Australian Consumer Law (Sch 2, Competition and Consumer Act 2010 (Cth)), ss 60, 61
Australian Constitution
Competition and Consumer Act 2010 (Cth)
Judiciary Act 1903 (Cth)
Trade Practices Act 1974 (Cth)
Trade Practices Amendment Act 1977 (Cth)
Trade Practices Amendment (Australian Consumer Law) Act (No 2) 2010 (Cth)
Trade Practices Revision Act 1986 (Cth)
Treasury Legislation Amendment (Professional Standards) Act 2004 (Cth)

 

Civil Liability Act 2002 (NSW)
Civil Procedure Act 2005 (NSW)
Contracts Review Act 1980 (NSW)
Interpretation Act 1987 (NSW)
Professional Standards Act 1994 (NSW)
Sale of Goods Act 1923 (NSW)
Supreme Court Act 1970 (NSW)

 

Supreme Court Act 1986 (Vic)

 

Consumer Guarantees Act 1993 (NZ)
Sale of Goods Act 1893 (UK)

  Trade Practices Amendment (Australian Consumer Law) Bill (No 2) 2010 (Cth)

Cases Cited:

Adamson v New South Wales Rugby League Ltd (1991) 31 FCR 242; [1991] FCA 425
Agtrack (NT) Pty Ltd v Hatfield (2005) 223 CLR 251; [2005] HCA 38
Aldi Foods Pty Ltd v Moroccanoil Israel Ltd [2018] FCAFC 93
Austral Pacific Group Ltd (In Liquidation) v Airservices Australia (2000) 203 CLR 136; [2000] HCA 39
Australian Knitting Mills Ltd v Grant (1933) 50 CLR 387; [1933] HCA 35
Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424; [2001] FCA 1833
Childs v Scenic Tours Pty Ltd [2014] NSWCATCD 128
CSL Australia Pty Ltd v Formosa [2009] NSWCA 363; (2009) 261 ALR 441
David Jones Ltd v Willis (1934) 52 CLR 110; [1934] HCA 47
Dwyer v Calco Timbers Pty Ltd (2008) 234 CLR 124; [2008] HCA 13
E v Australian Red Cross Society (1991) 31 FCR 299; [1991] FCA 603
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Graham Barclay Oysters Pty Ltd v Ryan (2000) 102 FCR 307; [2000] FCA 1099
Grant v Australian Knitting Mills Ltd (1935) 54 CLR 49; [1935] UKPCHCA 1
Henry Kendall & Sons v William Lillico & Sons Ltd (subnom Hardwick Game Farm v Suffolk Agricultural Poultry Producers Association) [1969] 2 AC 31
House v King (1936) 55 CLR 499; [1936] HCA 40
Insight Vacations Pty Ltd v Young (2010) 78 NSWLR 641; [2010] NSWCA 137
Insight Vacations Pty Ltd v Young (2011) 243 CLR 149; [2011] HCA 16
John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503; [2000] HCA 36
Kay’s Leasing Corporation Pty Ltd v Fletcher (1964) 116 CLR 124; [1964] HCA 79
Kelly v The Queen (2004) 218 CLR 216; [2004] HCA 12
Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 155; [2007] HCA 61
Ku-ring-gai Council v Chan [2017] NSWCA 226; 224 LGERA 339
Lloyd v Scenic Tours Pty Ltd [2010] NSWCTTT 591
Macleod v Australian Securities and Investments Commission (2002) 211 CLR 287; [2002] HCA 37
Merck Sharp & Dohme (Aust) Pty Ltd v Peterson [2009] FCAFC 26
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30
Moore v Scenic Tours Pty Ltd [2015] NSWSC 1777
Moore v Scenic Tours Pty Ltd (No 2) [2017] NSWSC 733
Moore v Scenic Tours Pty Ltd (No 3) [2017] NSWSC 1555
Motorcycling Events Group Australia Pty Ltd v Kelly (2013) 86 NSWLR 55; [2013] NSWCA 361
National Insurance Company of New Zealand v Espagne (1961) 105 CLR 569; [1961] HCA 15
Northern Territory v GPAO (1999) 196 CLR 553; [1999] HCA 8
Obeid v Australian Competition and Consumer Commission [2014] FCA 839
Obeid v Australian Competition and Consumer Commission (2014) 226 FCR 471; [2014] FCAFC 155
Old UGC, Inc v Industrial Relations Commission (NSW) (2006) 225 CLR 274; [2006] HCA 24
Perisher Blue Pty Ltd v Nair-Smith (2015) 90 NSWLR 1; [2015] NSWCA 90
Peterson v Merck Sharp & Dohme (Aust) Pty Ltd [2010] FCA 180
R v Credit Tribunal; Ex parte General Motors Acceptance Corporation, (Australia) (1977) 137 CLR 545; [1977] HCA 34
Redding v Lee (1983) 151 CLR 117; [1983] HCA 16
Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679; [2016] HCA 22
The National Insurance Company of New Zealand Ltd v Espagne (1961) 105 CLR 569; [1961] HCA 15
Timbercorp Finance Pty Ltd v Collins (2016) 259 CLR 212; [2016] HCA 44
United Voice v Restaurant and Catering Association of Victoria (2014) 226 FCR 255; [2014] FCAFC 121
Wallis v Downard-Pickford (North Queensland) Pty Ltd (1994) 179 CLR 388; [1994] HCA 17
Wanganui-Rangitikei Electric Power Board v Australian Mutual President Society (1934) 50 CLR 581; [1934] HCA 3
Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9

Texts Cited:

Commonwealth Consumer Affairs Advisory Council, Consumer Rights: Reforming Statutory Implied Conditions and Warranties (Final Report 2009)

 

Commonwealth House of Representatives, Parliamentary Debates (Hansard), 17 March 2010

 

M Bridge, Benjamin’s Sale of Goods (10th ed 2017, Sweet and Maxwell)
M Davies, A Bell and P Le G Brereton, Nygh’s Conflict of Laws in Australia, (9th ed 2014, LexisNexis Butterworths)
M Harding and I Malkin, “The High Court of Australia’s Obiter Dicta and Decision-Making in Lower Courts” (2012) 34 Syd L Rev 239)

  Practice Note SC Gen 17

Category:

Principal judgment

Parties:

Scenic Tours Pty Ltd (Appellant)
David Moore (Respondent)

Representation:

Counsel:
Mr DL Williams SC / Mr DS Weinberger (Appellant)
Mr A Abadee / Mr T Liu (Respondent)

  Solicitors:
SWS Lawyers (Appellant)
Somerville Legal (Respondent)

File Number(s):

2017/292822

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law

Citation:

[2017] NSWSC 733

Date of Decision:

31 August 2017

Before:

Garling J

File Number(s):

2014/223271

HEADNOTE

[This headnote is not to be read as part of the decision]

In early 2013 Mr Moore booked a European river cruise with Scenic Tours Pty Ltd (Scenic). The cruise was to depart from Amsterdam on 3 June 2013 and arrive in Budapest on 17 June 2013.

Mr Moore’s cruise (Cruise 8) was seriously affected by high water levels on the Rhine and Main Rivers. As a consequence, passengers on Cruise 8 experienced substantial disruptions to their scheduled itinerary. Among other problems, passengers were required to spend many hours on buses travelling from place to place rather than cruising along the river system on a single “luxury” vessel.

Similar although not identical problems affected a number of other European river cruises conducted by Scenic or associated entities at about the same time.

Mr Moore commenced representative proceedings pursuant to ss 157 and 158 of the Civil Procedure Act 2005 (NSW) on behalf of himself and persons who booked and paid for 23 river cruises with Scenic (Group Members). The trial, however, was concerned with only 13 river cruises scheduled to embark between 19 May 2013 and 12 June 2013.

The principal contentions advanced at the trial were that Scenic supplied services to Mr Moore and each Group Member:

• without due care and skill, in contravention of s 60 of the Australian Consumer Law (ACL) (Care Guarantee);

• such that the services were not fit for the purpose for which Mr Moore and each Group Member acquired them, in contravention of s 61(1) of the ACL (Purpose Guarantee); and

• such that the services were not of a nature and quality as could reasonably be expected to achieve the result that Mr Moore and each Group Member wished the services to achieve, in contravention of s 61(2) of the ACL (Result Guarantee).

(Collectively the Consumer Guarantees.)

In his own case, Mr Moore sought of damages or compensation by reason of Scenic’s breaches of the Consumer Guarantees, as follows:

•   compensation for “reduction in the value of services provided by [Scenic] below the price paid … by [Mr Moore] for the services”, pursuant to s 267(3) of the ACL; and

•   damages for “loss or damage suffered by [Mr Moore] because of the failure to comply with the [statutory] guarantee”, pursuant to s 267(4) of the ACL.

In Mr Moore’s own case, the primary Judge found that Scenic:

•   failed to comply with the Care Guarantee because Scenic, exercising due care and skill, should have recognised by 2 June 2013 (the day before Cruise 8 was scheduled to commence) that the river conditions did not enable the cruise to take place as promised and should have cancelled the cruise at that point;

•   failed to comply with the Purpose Guarantee because the services it supplied to Mr Moore were not reasonably fit for the particular purpose he had made known, namely that he wished to take Cruise 8 and enjoy it together with all the services Scenic said that it would provide; and

•   failed to comply with the Result Guarantee by not providing services to Mr Moore of a nature and quality that might reasonably have been expected to achieve the result that he desired to achieve, namely to cruise in the same cabin on the same ship for the entirety of the 15 day itinerary period in comfort while experiencing the waterways of Europe.

The primary Judge also gave answers to a series of questions that were said to include questions common to the claims of all Group Members. In substance his Honour found that Scenic had breached the Purpose and Result Guarantees in relation to 10 of the remaining 12 cruises and had breached the Care Guarantee in relation to nine of the 12 remaining cruises.

The primary Judge found that Mr Moore was entitled to compensation and damages by reason of Scenic’s breaches of the Consumer Guarantees in relation to Cruise 8. His Honour awarded Mr Moore $10,990 as compensation under s 267(3) of the ACL for Scenic’s breach of the Care Guarantee and $2,000 as damages under s 267(4) of the ACL for Scenic’s breach of the Purpose and Result Guarantees. His Honour entered judgment in Mr Moore’s favour for $16,539.85 inclusive of interest.

Scenic sought leave to appeal against the primary Judge’s decision. The Court granted leave to appeal and allowed the appeal in part.

Sackville AJA (Payne JA and Barrett AJA agreeing) held:

(i) The “services” to be provided by Scenic, for the purposes of the Consumer Guarantees, were not co-extensive with or limited by Scenic’s obligations under the contractual Terms and Conditions which bound passengers. To determine the services Scenic was to provide it is necessary to assess objectively the dealings between the supplier of services (Scenic) and the consumer (the passenger) to determine the benefits or facilities the consumer could reasonably expect the supplier to provide in return for the price paid for the cruise: [174], [176].

(ii)   The services to be provided by Scenic to Mr Moore included the benefits and facilities of Cruise 8 as set out in Scenic’s brochure made available to him prior to booking Cruise 8 (Cruise Services): [190].

(iii)   However, the primary Judge erred in finding that the services to be provided by Scenic included informing Mr Moore and other passengers before the commencement of a cruise of events that might have an adverse impact on the scheduled itinerary: [202].

(iv) The primary Judge correctly found that Scenic failed to comply with the Purpose Guarantee in relation to Cruise 8 because the services it provided were not reasonably fit for the particular purpose for which Mr Moore acquired the services, namely experiencing Cruise 8 in accordance with the services and itinerary published in Scenic’s brochure: [226], [237].

(v) In the way the trial was conducted it was open to the primary Judge to make findings that Scenic failed to comply with the Purpose Guarantee in relation to cruises other than Cruise 8: [256], [265], [266], [267], [268], [269], [271], [272], [277], [279].

(vi) The primary Judge did not err in finding that Scenic also failed to comply with the Result Guarantee: [283].

(vii) The primary Judge erred in finding that Scenic failed to comply with the Care Guarantee by its pre-embarkation acts or omissions: [293], [294], [296].

(viii) The primary Judge did not err in finding that Scenic failed to comply with the Care Guarantee because of post-embarkation conduct in relation to four of the cruises: [298], [302], [303], [304].

(ix) The primary Judge erred in assessing compensation for Mr Moore under s 267(3)(b) of the ACL for reduction in the value of the services provided to him by reason of Scenic’s failure to comply with the Consumer Guarantees. The error consisted of assessing the reduction in value of the services by reference to subjective rather than objective considerations. Thus the question of compensation should be remitted to the primary Judge: [331], [335].

(x) The primary Judge erred in awarding damages to Mr Moore under s 267(4) of the ACL for distress and disappointment caused by Scenic’s failure to comply with the Purpose and Result Guarantees. This was because s 275 of the ACL picked up and applied s 16 of the Civil Liability Act 2002 (NSW) (Civil Liability Act) as a surrogate federal law. Section 16 applied to Mr Moore’s claim because he sought damages for non-economic loss (within the meaning of s 16) and could not satisfy the statutory threshold for a damages claim (15 per cent of a most serious case): [364], [372], [381].

Insight Vacations Pty Ltd v Young (2011) 243 CLR 149; [2011] HCA 16; Insight Vacations Pty Ltd v Young (2010) 78 NSWLR 641; [2010] NSWCA 137 applied.

(xi) Section 16 of the Civil Liability Act applied notwithstanding that Scenic’s contraventions of the Purpose and Result Guarantees in Mr Moore’s case occurred outside Australia. There was a sufficient geographic connection with New South Wales because s 16 is expressed to apply to a claim for damages in a New South Wales court: [388]

Insight Vacations Pty Ltd v Young (2011) 243 CLR 149; [2011] HCA 16 applied.

(xii) Group Members are precluded by s 275 of the ACL and s 16 of the Civil Liability Act from claiming damages for distress and disappointment. Their claims for compensation for reduced value pursuant to s 267(3)(b) of the ACL remain to be determined where a breach of the Care Guarantee has been established: [397].

(xiii)   Observations on the need to identify common questions of law or fact early in representative proceedings: [405]-[409]

INDEX
Judgment ..…………………………………………………………….	1
The proceedings ……………………………………………………...	3
Jurisdiction …………………………………………………………….	29
Legislation ……………………………………………………………..	32
Representative proceedings …………………………..........	32
Australian Consumer Law …………………………………...	36
Competition and Consumer Act …………………………….	33
Civil Liability Act ……………………………………………....	43
Necessity for leave …………………………………………………...	48
Mr Moore’s pleaded case …………………………………..............	53
Common questions …………………………………………………..	63
Statement of Issues ………………………………………….	63
Difficulties with the Statement of Issues …………………...	69
Scenic’s application to amend its Notice of Appeal ……....	78
Question 8 and s 61(3) of the ACL ………………………....	82
Background facts …..…………………………………………….......	89
Scenic ……………………………………………………........	90
The Brochure ……………………………………………........	92
Terms and Conditions ………………………………………..	99
Mr Moore’s booking …………………………………………..	101
Cruise 8 ………………………………………………………..	106
Issues ………………………………………………………………….	119
Elements of the statutory causes of action ………………..	119
A preliminary point ……………………………………………	131
Common ground ……………………………………………...	140
Characterisation of “services” ……………………..........................	144
Scenic’s submissions at trial ………………………………..	146
Primary Judgment …………………………………………....	148
Scenic’s submissions ………………………………………...	152
Legislative history …………………………………………….	155
Approach to construction ……………………………….......	164
Construction of the ACL ……………………………………..	167
Services supplied to Mr Moore ……………………………...	185
Cruise Services ……………………………………….	186
Information Services …………………………………	192
Purpose Guarantee – Mr Moore’s case ……………………………	209
Particular purpose …………………………………………....	209
Primary Judgment ...………………………………....	209
Scenic’s submissions .……………………………….	214
Consideration of Mr Moore’s particular purpose ….	217
Fitness for purpose …………………………………………..	227
Primary Judge’s finding ……………………………...	227
Scenic’s submissions ………………………………...	229
Not fit for purpose ………………………………........	231
Purpose Guarantee: Group Members ..…………………………….	238
The finding as to “particular purpose” ………………………	238
Scope of appellate review …………………………………...	251
Scenic’s submissions ………………………………………...	257
Primary Judge’s findings …………………………………….	260
Cruise 1 ………………………………………………..	261
Cruise 4 ………………………………………………..	266
Cruise 5 ………………………………………………..	267
Cruise 6 ………………………………………………..	268
Cruise 7 ………………………………………………..	269
Cruise 8 ………………………………………………..	270
Cruise 9 ………………………………………………..	271
Cruise 11 ………………………………………...........	272
Cruise 2 ………………………………………………..	273
Cruise 3 ………………………………………………..	278
Result Guarantee …………………………………………………….	280
Care Guarantee ………………………………………………………	284
Pre-embarkation ……………………………………………...	285
Cruise 8 ………………………………………………..	286
Cruise 1 ………………………………………………..	292
Cruise 9 ………………………………………………..	294
Cruise 11 ………………………………………………	295
Post-embarkation …………………………………………….	297
Cruise 4 ………………………………………………..	297
Cruise 5 ………………………………………………..	299
Cruise 6 ………………………………………………..	303
Cruise 7 ………………………………………………..	304
Notice of Contention ………………………………………….	305
Circumstances independent of human control ……………………	306
Mr Moore’s claim for compensation and damages: Primary Judgment .……………………………………………………………..	310
Major failure …………………………………………………..	312
Compensation ……………………………………………......	313
Breach of Purpose and Result Guarantees ……….	313
Breach of Care Guarantee ..…………………………	318
Insurance .……….…………………………………………….	319
Damages ..……………………………..……………………..	321
Compensation under s 267(3)(b) of the ACL ……………………...	327
Assessment of compensation ……………………………….	327
Deduction for insurance payout? …………………………...	336
Damages under s 267(4) of the ACL ………………......................	344
Scenic’s submissions ………………………………………...	345
Mr Moore’s submissions ……………………………………..	347
Legislative history: ACL s 275 ……………………………....	351
Reasoning ……………………………………………………..	358
Insight Vacations (H Ct) ……………………………..	362
Construction of s 275 of the ACL …………………...	373
Conclusion ………………………………………….....	391
Group Members’ claim for compensation and damages …………	392
Resolution of the appeal ……………………………………………..	396
Summary of conclusions …………………………………….	396
Mr Moore’s claim ……………………………………………..	399
Group Members’ claims ……………………………………..	400
Costs …………………………………………………………..	402
Postscript ……………………………………………………………...	405
Appendix A – Route of Cruise 8	pg 170
Appendix B – Route of Cruise 1	pg 171
Appendix C – Questions and Answers	pg 172

LIST OF ABBREVIATIONS

1893 Act	Sale of Goods Act 1893 (UK)
1923 Act	Sale of Goods Act 1923 (NSW)
3FASC	Third Further Amended Statement of Claim
ACL	Australian Consumer Law
Brochure	The brochure promoting Scenic’s cruises distributed to Mr Moore and Group Members
Care Guarantee	The guarantee imposed on a Supplier of Services by s 60 of the ACL
Civil Liability Act	Civil Liability Act 2002 (NSW)
Civil Procedure Act	Civil Procedure Act 2005 (NSW)
Competition and Consumer Act	Competition and Consumer Act 2010 (Cth)
Consumer Council	Commonwealth Consumer Affairs Advisory Council
Consumer Guarantees	The Care, Purpose and Result Guarantees collectively
Consumer Rights Report	Commonwealth Consumer Affairs Advisory Council, Consumer Rights: Reforming statutory implied conditions and warranties (Final Report, October 2009)
Cruise 1	14 day “South of France River Cruise” scheduled to depart from Chalon-sur-Saône on 20 May 2013 and to arrive at Arles (on the Rhône River) on 1 June 2013
Cruise 8	“Jewels of Europe River Cruise” departing from Amsterdam on the Scenic Jewel on 3 June 2013 and arriving in Budapest on 17 June 2013
David Jones	David Jones v Willis (1934) 52 CLR 110; [1934] HCA 47
Evergreen	Evergreen Pty Ltd
Grant	Grant v Australian Knitting Mills Ltd (1935) 54 CLR 49; [1935] UKPCHCA 1
Group Members	The persons on whose behalf the representative proceedings were commenced
Insight Vacations (CA)	Insight Vacations Pty Ltd v Young (2010) 78 NSWLR 641; [2010] NSWCA 137
Insight Vacations (H Ct)	Insight Vacations Pty Ltd v Young (2011) 243 CLR 149; [2011] HCA 16
Interpretation Act	Interpretation Act 1987 (NSW)
Judiciary Act	Judiciary Act 1903 (Cth)
Mr Moore	The respondent
National Insurance v Espagne	National Insurance Company of New Zealand v Espagne (1961) 105 CLR 569; [1961] HCA 15
Notice of Appeal	Scenic’s Draft Amended Notice of Appeal
Notice of Contention	Mr Moore’s Amended Draft Notice of Contention
Obeid v ACCC	Obeid v Australian Competition and Consumer Commission [2014] FCA 839
Primary Judgment	Moore v Scenic Tours Pty Ltd (No 2) [2017] NSWSC 733
Purpose Guarantee	The guarantee imposed on a Supplier of Services by s 61(1) of the ACL
Result Guarantee	The guarantee imposed on a Supplier of Services by s 61(2) of the ACL
Revised EM	Revised Explanatory Memorandum to the Treasury Legislation Amendment (Professional Standards) Bill 2004
Scenic	The appellant
Scenic Europe	Scenic Tours Europe AG
Scenic Tours (No 1)	Moore v Scenic Tours Pty Ltd [2015] NSWSC 1777
Statement of Issues	Issues identified in the document entitled “Amended Statement of Issues” filed in the Common Law Division proceedings on 13 May 2016.
Supplementary Judgment	Moore v Scenic Tours Pty Ltd (No 3) [2017] NSWSC 1555
Supreme Court Act	Supreme Court Act 1970 (NSW)
SZVFW	Minister for Immigration and Border Protection v SZVFW [2018] HCA 30
Terms and Conditions	The contractual terms and conditions included in the Brochure
Timbercorp	Timbercorp Finance Pty Ltd (in liq) v Collins (2016) 259 CLR 212; [2016] HCA 44
Trade Practices Act	Trade Practices Act 1974 (Cth)
Wallis	Wallis v Downard-Pickford (North Queensland) Pty Ltd (1994) 179 CLR 388; [1994] HCA 17

Judgment

1. PAYNE JA: I have had the privilege of reading the decision of Sackville AJA in draft. I agree with his Honour’s reasons and the orders he proposes.

2. SACKVILLE AJA:

The proceedings

3. This is an application for leave to appeal from orders made by the primary Judge (Garling J) in representative proceedings brought in the Common Law Division pursuant to ss 157 and 158 of the Civil Procedure Act 2005 (NSW) (Civil Procedure Act). The proceedings were commenced by the respondent (Mr Moore) on behalf of himself and persons who booked and paid for 23 river cruises in Europe scheduled to take place between 10 May 2013 and 14 June 2013 (Group Members). The trial, however, was concerned only with 13 river cruises scheduled to embark between 19 May 2013 and 12 June 2013. The applicant (Scenic) operated the river cruises either by itself or through associated entities. [1]

   1. Moore v Scenic Tours Pty Ltd (No 2) [2017] NSWSC 733 (Primary Judgment) at [3].

4. Mr Moore, who travelled with his wife, booked a tour with Scenic that commenced in Paris on the morning of 31 May 2013. The tour included a “Jewels of Europe River Cruise” departing from Amsterdam on the Scenic Jewel on 3 June 2013 and arriving in Budapest on 17 June 2013 (Cruise 8). The scheduled route took the Scenic Jewel along the Rhine, Main and Danube Rivers. The route is shown on the plan reproduced at Appendix A.

5. Because of high water levels on the Rhine and Main Rivers, Scenic provided a different vessel for the start of Cruise 8, namely the Scenic Ruby. Passengers were later transferred to the Scenic Jewel but they experienced substantial disruptions to the scheduled itinerary. Passengers were required to spend many hours in buses on a number of days travelling from place to place, rather than cruising along the river system on board “Your luxury Scenic Tours ‘Space-Ship’”. [2]

   2.    The description of the vessel in Scenic’s brochure entitled “Europe River Cruises & Tours: 2013-2014”.

6. Of the other 12 cruises, eleven were scheduled either to sail from Amsterdam to Budapest or on the return trip from Budapest to Amsterdam. The remaining cruise (Cruise 1) was a 14 day “South of France River Cruise” scheduled to depart from Chalon-sur-Saône on 20 May 2013 and to arrive at Arles (on the Rhône River) on 1 June 2013. The route for Cruise 1 is shown on the plan reproduced at Appendix B.

7. The Court was told that there were up to 1,500 passengers on the 13 cruises, all of whom are Group Members. Not all Group Members are residents of New South Wales. Some reside in other Australian States or Territories and some are resident in overseas countries. Seven passengers gave evidence in the proceedings (Mr Moore and six Group Members), of whom three were New South Wales residents and four were residents of Queensland or Victoria. As at November 2017, about 500 Group Members had retained the solicitors acting for Mr Moore. [3]

   3. Moore v Scenic Tours Pty Ltd [2015] NSWSC 1777 (Scenic Tours (No 1)) at [52] (Beech-Jones J). No further information as to the retainer was provided to this Court.

8. Mr Moore’s case, in its final form, was pleaded in the Third Further Amended Statement of Claim (3FASC). [4] He alleged that Scenic Tours contravened the statutory guarantees to consumers contained in ss 60 and 61 of the Australian Consumer Law (ACL) [5] both in relation to Cruise 8 and the other 12 cruises. In particular, Mr Moore alleged that Scenic Tours supplied services to Mr Moore and each Group Member:

• without due care and skill, in contravention of s 60 of the ACL (Care Guarantee);

• such that the services were not fit for the purpose for which Mr Moore and each Group Member acquired them, in contravention of s 61(1) of the ACL (Purpose Guarantee); and

• such that the services were not of a nature and quality as could reasonably be expected to achieve the result that Mr Moore and each Group Member wished the services to achieve, in contravention of s 61(2) of the ACL (Result Guarantee).

I refer to the three statutory guarantees collectively as the Consumer Guarantees.

4. Mr Moore’s pleaded case is addressed in more detail at [53]-[62] below.

5. The ACL is contained in Sch 2 to the Competition and Consumer Act 2010 (Cth) (Competition and Consumer Act). Sections 60 and 61 of the ACL are reproduced at [36] below.

9. Broadly speaking, Mr Moore claimed that Scenic breached the Care Guarantee in relation to a number of the cruises by failing to inform passengers in a timely manner of the disruptions it knew or should have known were likely to occur to each scheduled itinerary because of adverse weather and river conditions. Given the information available to Scenic, it should either have cancelled the cruise or given the passengers the opportunity to cancel.

10. Mr Moore’s claim that Scenic breached the Purpose and Result Guarantees rested on the disparity between the services promoted and offered by Scenic to Group Members and the services actually supplied to them on the cruises. The disruptions to the cruises were so great in each case, so it was argued, that the services supplied were not reasonably fit for the purpose made known to Scenic by the Group Members (s 61(1)) and could not reasonably be expected to achieve the result the Group Members wished to achieve (s 61(2)).

11. In his own case, Mr Moore sought two heads of damages or compensation by reason of Scenic’s breaches of the Consumer Guarantees, as follows:

• compensation for “reduction in the value of services provided by [Scenic] below the price paid … by [Mr Moore] for the services”, pursuant to s 267(3) of the ACL; [6] and

• damages for “loss or damage suffered by [Mr Moore] because of the failure to comply with the [statutory] guarantee”, pursuant to s 267(4) of the ACL.

  6. Section 267 of the ACL is reproduced at [41] below.

12. As is often the case with representative proceedings, there were disputes between the parties as to the manner in which the proceedings should be conducted. In the course of an interlocutory hearing prior to the trial, Scenic accepted that there were some questions common to all Group Members but contended that different questions arose for each of the 13 cruises and for different categories of Group Members. Scenic sought directions from the Court pursuant to s 168 of the Civil Procedure Act [7] establishing sub-groups to enable questions common to some but not all Group Members to be determined. This application was unsuccessful. [8]

    7. Reproduced at [32] below.

    8. Scenic Tours (No 1) at [44]. Scenic made a belated application to amend its Notice of Appeal to challenge the decision of Beech-Jones J. The application was refused: see at [80] below.

13. The primary Judge recorded that the hearing was conducted on the basis that his Honour would determine the whole of Mr Moore’s claim and “the common issues insofar as they affected the group members’ claims, and insofar as they were common to the whole or an identifiable part of the group”. [9] What were said to be common issues were identified in a document filed in court on 13 May 2016, the last of the six hearing days (Statement of Issues). That document was subsequently amended.

    9. Primary Judgment at [55].

14. The primary Judge delivered judgment on 31 August 2017. His Honour made findings as to whether Scenic had breached the statutory guarantees in relation to each of the 13 cruises. Mr Williams SC, who appeared with Mr Weinberger for Scenic, helpfully prepared a chart summarising the findings for each cruise. It is convenient to reproduce a portion of the chart here: [10]

    10.    The names in the second column identify the passengers on various cruises who gave evidence in the Respondent’s case. As can be seen, Mr Moore adduced evidence at the trial from passengers who travelled on Cruises 1, 4, 8, 9 and 11.

No	Cruise Code	Start date	Route	Consumer Guarantee breached?
				Purpose s 61(1)	Result s 61(2)	Care s 60
1.	FRCR 190513.1 Britten	19 May 2013 (embark 20 May)	Saone/Rhône	Y	Y	Y
2.	STC 200513.2	20 May 2013	BUD-AMS	Y	Y	N/A
3.	EGFC 250513.1	25 May 2013	AMS-BUD	Y	Y	N/A
4.	STC 270513.1 Cairncross Holgye	27 May 2013	AMS-BUD	Y	Y	Y
5.	STC 270513.2	27 May 2013	BUD-AMS	Y	Y	Y
6.	STC 290513.1	29 May 2013	AMS-BUD	Y	Y	Y
7.	STC 290513.2	29 May 2013	BUD-AMS	Y	Y	Y
8.	STC 030613.1 Moore Childs	3 June 2013	AMS-BUD	Y	Y	Y
9.	EGRC 080613.1 Willems	8 June 2013	BUD-AMS	Y	Y	Y
10.	STC 100613.1	10 June 2013	AMS-BUD	N	N	Y
11.	STC 100613.2 Peattie	10 June 2013	BUD-AMS	Y	Y	Y
12.	STC 120613.1	12 June 2013	AMS-BUD	N	N	N
13.	STC 120613.2	12 June 2013	BUD-AMS	N	N	Y

15. Care needs to be taken in interpreting this summary. For example, as will be seen, some breaches of the Care Guarantee (s 60) are said to have occurred prior to embarkation on the relevant cruise, while others are said to have occurred after embarkation. In two cases (Cruises 10 and 13) the primary Judge found that Scenic breached the Care Guarantee but also found that passengers on those cruises had not suffered any compensable loss or damage.

16. The chart correctly records that the primary Judge found that Scenic failed to comply with each of the three Consumer Guarantees in relation to Cruise 8, the cruise taken by Mr Moore. His Honour found that Scenic:

• failed to comply with the Care Guarantee because Scenic, exercising due care and skill, should have recognised by 2 June 2013 (the day before Cruise 8 was scheduled to commence) that the river conditions did not enable the cruise to take place as promised and should have cancelled the cruise at that point; [11]

• failed to comply with the Purpose Guarantee because the services it supplied to Mr Moore were not reasonably fit for the particular purpose he had made known, namely that he wished to take Cruise 8 and enjoy it together with all the services Scenic said that it would provide; [12] and

• failed to comply with the Result Guarantee by not providing services to Mr Moore of a nature and quality that might reasonably have been expected to achieve the result that he desired to achieve, namely to cruise in the same cabin on the same ship for the entirety of the 15 day itinerary period in comfort while experiencing the waterways of Europe. [13]

  11.    Primary Judgment at [652], [654], [810].

  12.    Primary Judgment at [393], [645]-[646].

  13.    Primary Judgment at [755], [765].

17. In reaching these conclusions the primary Judge rejected Scenic’s contention that the “services” it supplied to Mr Moore and the Group Members were co-extensive with or delimited by the Terms and Conditions contained in the brochure issued by Scenic by which Mr Moore and the Group Members were bound. Mr Moore had pleaded that if Scenic’s contention was accepted, the Terms and Conditions should be held to be unenforceable because they were “unjust” within the meaning of the Contracts Review Act 1980 (NSW) or “unfair” within the meaning of s 24 of the ACL. [14] Since his Honour rejected Scenic’s contention, he did not consider it necessary to deal with Mr Moore’s case founded on unconscionability or unfairness. [15] That case is the subject of a Notice of Contention filed in this Court. [16]

    14. Primary Judgment at [43].

    15.    See the answer to Question 18 in the Statement of Issues reproduced in Appendix C to this judgment.

    16. See at [52] below.

18. His Honour found that Mr Moore was entitled to compensation and damages by reason of Scenic’s non-compliance with the Consumer Guarantees.

19. In the Primary Judgment his Honour made an order in the following terms:[17]

“1.   Judgment for [Mr Moore] against [Scenic] in the following amount:

(a)   $10,990 by way of compensation;

(b)   $2,000 by way of damages;

(c) Interest in accordance with s 100 of the Civil Procedure Act 2005, on the sum in (a) from 3 June 2013, and on the sum in (b) from 17 June 2013.”

17. Primary Judgment at [946]. On 15 November 2017 the primary Judge entered judgment for Mr Moore on his personal claim in the sum of $16,539.85, inclusive of interest. See at [25] below.

20. The award of $10,990, which represented the full amount paid by Mr Moore for Cruise 8, [18] was made pursuant to s 267(3) of the ACL as compensation for reduction in the value of the services provided by Scenic to Mr Moore. His Honour awarded this sum as compensation for what he found was Scenic’s breach of the Care Guarantee. That breach consisted of Scenic’s:

“failure to provide, prior to embarkation, timely and accurate information about likely or anticipated interruption of the cruise itinerary, and either to cancel the cruise or else offer Mr Moore the opportunity to cancel the cruise”. [19]

18.    The total amount actually paid by Mr Moore to Scenic was greater than $10,990 because the price included other services not in issue in the present case.

19. Primary Judgment at [810].

21. The award of $2,000 was made pursuant to s 267(4) of the ACL as damages for Scenic’s failure to comply with the Purpose and Result Guarantees. This was the full amount Mr Moore claimed as damages for “disappointment and distress”. His Honour considered the amount to be “modest” and indicated that he would have assessed damages at a higher amount had Mr Moore not limited his claim to $2,000. [20]

    20.    Primary Judgment at [918]-[920].

22. The primary Judge rejected Scenic’s argument that the Court was precluded from awarding any damages to Mr Moore. Scenic submitted that s 275 of the ACL[21] required the Court to apply s 16 of the Civil Liability Act 2002 (NSW) (Civil Liability Act) as a surrogate federal law. Section 16 of the Civil Liability Act precludes an award of damages for non-economic loss “unless the severity of non-economic loss is at least 15% of a most extreme case”. The primary Judge accepted that s 16 was to be applied as a surrogate federal law but held that s 16 has no extra-territorial operation and therefore does not apply to non-economic loss sustained outside Australia. [22]

    21. Section 275 of the ACL is reproduced at [41] below.

    22. Primary Judgment at [942]-[943].

23. The primary Judge directed the parties to file short minutes of order proposing answers to “the questions agreed by the parties” in the light of the findings made in the Primary Judgment. A further hearing took place on 15 November 2017 at which the parties reached a “large measure” of agreement as to the answers. [23] The Statement of Issues was amended in some respects as the result of the parties’ submissions at the hearing. The primary Judge then delivered an ex tempore judgment in which he “set out [the] questions and answers given by the Court with respect to the identified common issues”. [24]

    23. Moore v Scenic Tours Pty Ltd (No 3) [2017] NSWSC 1555 (Supplementary Judgment) at [4].

    24. Supplementary Judgment at [5].

24. The Questions and Answers are contained in a lengthy document which is reproduced at Appendix C. The final question and answer are as follows:

“Question 22:

With respect to issues 1 to 20 inclusive, are the answers common to all group members, some group members, and if so which ones, or else no group members?

Answer:

Save to the extent indicated above, all of the answers to the questions are common to the claims of the group members, who resided in Australia and Vanuatu, and who contracted with the defendant. A determination has not yet been made as to whether all of the answers to the questions are common to other passengers on the cruises who resided outside Australia and Vanuatu.”

25. The formal orders made by his Honour on 15 November 2017 included the following:

“1.   On [Mr Moore’s] personal claim against [Scenic], I order there be judgment for [Mr Moore] in the sum of $16,539.85.

2.   Order that the common issues stated for determination be answered in the form of the Answers in the document described as ‘Answers to Common Issues Stated for Determination’ dated today and initialled by Garling J.”

The judgment sum included an allowance for interest.

26. The form of the answers (incorporated by reference into the orders) was evidently intended to comply with s 179 of the Civil Procedure Act, which provides as follows:

“A judgment given in representative proceedings:

(a)    must describe or otherwise identify the group members who will be affected by it, and

(b)   binds all such persons other than any person who has opted out of the proceedings under section 162.”

27. Assuming the orders made by the primary Judge stand, including the answers to the “common issues”, the outcome of the proceedings to date is as follows:

• Scenic has either not been found to have breached any of the Consumer Guarantees in relation to Cruises 10, 12 and 13 or, alternatively, the Group Members who were passengers on those cruises have been found not to have sustained any compensable loss or damage.

• Mr Moore’s claim has been resolved and final orders made in his favour.

• Insofar as the proceedings involve claims for compensation and damages arising out of Cruises 1-7, 8 (other than Mr Moore’s claim), 9 and 11, the claims remain to be determined consistently with the answers to the common questions.

28. The structure of this judgment can be discerned from the index of headings. The conclusions I have reached in relation to Mr Moore’s personal claim and the claims of the Group Members are summarised at [396]-[397] below. The orders I propose are set out at [398]-[404] below.

Jurisdiction

29. The claims made by Mr Moore in the representative proceedings were founded on statutory guarantees created by a federal law (the ACL). If a party relies on a right created or derived from a federal law there is a matter arising under a law made by the Parliament within s 76(ii) of the Constitution. [25] To the extent that the Court in this case might otherwise have had power to deal with the matter, that power was removed and then invested (subject to conditions) by s 39(2) of the Judiciary Act 1903 (Cth) (Judiciary Act). From the outset, therefore, the Court was exercising federal jurisdiction and not State jurisdiction. [26]

    25. Agtrack (NT) Pty Ltd v Hatfield (2005) 223 CLR 251; [2005] HCA 38 at [32] (Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ).

    26. Austral Pacific Group Ltd (In Liquidation) v Airservices Australia (2000) 203 CLR 136; [2000] HCA 39 at [9] (Gleeson CJ, Gummow and Hayne JJ), at [50] (McHugh J); CSL Australia Pty Ltd v Formosa [2009] NSWCA 363; (2009) 261 ALR 441 at [23] per curiam.

30. If follows that State law is displaced except to the extent that the law operates in federal jurisdiction by virtue of a law of the Commonwealth Parliament. [27] The laws that are relevant for this purpose are ss 79 and 80 of the Judiciary Act, which provide as follows:

    27. CSL Australia Pty Ltd v Formosa at [24]; Motorcycling Events Group Australia Pty Ltd v Kelly (2013) 86 NSWLR 55; [2013] NSWCA 361 at [3] (Basten JA), at [36]-[37] (Meagher JA), at [76]-[79] (Gleeson JA).

“79   State or Territory laws to govern where applicable

(1) The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable.

…

80   Common law to govern

So far as the laws of the Commonwealth are not applicable or so far as their provisions are insufficient to carry them into effect, or to provide adequate remedies or punishment, the common law in Australia as modified by the Constitution and by the statute law in force in the State or Territory in which the Court in which the jurisdiction is exercised is held shall, so far as it is applicable and not inconsistent with the Constitution and the laws of the Commonwealth, govern all Courts exercising federal jurisdiction in the exercise of their jurisdiction in civil and criminal matters.”

31. The reason that the provisions of the Civil Procedure Act relating to representative proceedings apply to this case is that they are picked up and applied to the Court exercising federal jurisdiction by s 79(1) of the Judiciary Act. However State laws may be picked up and applied as surrogate federal laws by more specific provisions such as s 275 of the ACL. It will be necessary to examine the operation of s 275 in some detail when considering the remedies available to Mr Moore for breach of the Consumer Guarantees.

Legislation

Representative proceedings

32. The statutory regime governing the institution and conduct of representative proceedings in New South Wales is in Pt 10 Div 2 of the Civil Procedure Act. For present purposes it is sufficient to extract the following provisions:

“157   Commencement of representative proceedings

(1)   Subject to this Part, where:

(a)   7 or more persons have claims against the same person, and

(b)   the claims of all those persons are in respect of, or arise out of, the same, similar or related circumstances, and

(c)   the claims of all those persons give rise to a substantial common question of law or fact,

proceedings may be commenced by one or more of those persons as representing some or all of them.

(2)   Representative proceedings may be commenced:

(a)   whether or not the relief sought:

(i)   is, or includes, equitable relief, or

(ii)   consists of, or includes, damages, or

(iii)   includes claims for damages that would require individual assessment, or

(iv)   is the same for each person represented, and

(b)   whether or not the proceedings:

(i)   are concerned with separate contracts or transactions between the defendant in the proceedings and individual group members, or

(ii)   involve separate acts or omissions of the defendant done or omitted to be done in relation to individual group members.

158   Standing

(1) For the purposes of section 157(1)(a), a person has a sufficient interest to commence representative proceedings against another person on behalf of other persons if the person has standing to commence proceedings on the person’s own behalf against that other person.

…

168   Determination of questions where not all common

(1)   If it appears to the Court that determination of the question or questions common to all group members will not finally determine the claims of all group members, the Court may give directions in relation to the determination of the remaining questions.

(2)   In the case of questions common to the claims of some only of the group members, the directions given by the Court may include directions establishing a sub-group consisting of those group members and appointing a person to be the sub-group representative party on behalf of the sub-group members.”

Competition and Consumer Act

33. Section 131(1) of the Competition and Consumer Act provides that Schedule 2 applies as a law of the Commonwealth to the conduct of corporations. Schedule 2 incorporates the ACL.

34. Section 5(1) provides that the ACL extends to the engaging in conduct outside Australia by bodies corporate incorporated or carrying on business within Australia.

35. Section 131C(1) states that Part XI (which includes s 131) is not intended to exclude or limit the concurrent operation of any law, written or unwritten, of any State or Territory.

Australian Consumer Law

36. Sections 60, 61 and 64 of the ACL are in Part 3-2, Div 1. Sections 60 and 61 are in Subdiv B of Div 1. They provide as follows:

“60   Guarantee as to due care and skill

If a person supplies, in trade or commerce, services to a consumer, there is a guarantee that the services will be rendered with due care and skill.

61   Guarantees as to fitness for a particular purpose etc.

(1)   If:

(a)   a person (the supplier) supplies, in trade or commerce, services to a consumer; and

(b)   the consumer, expressly or by implication, makes known to the supplier any particular purpose for which the services are being acquired by the consumer;

there is a guarantee that the services, and any product resulting from the services, will be reasonably fit for that purpose.

(2)   If:

(a)   a person (the supplier) supplies, in trade or commerce, services to a consumer; and

(b)   the consumer makes known, expressly or by implication, to:

(i)   the supplier; or

(ii)   a person by whom any prior negotiations or arrangements in relation to the acquisition of the services were conducted or made;

the result that the consumer wishes the services to achieve;

there is a guarantee that the services, and any product resulting from the services, will be of such a nature, and quality, state or condition, that they might reasonably be expected to achieve that result.

(3)   This section does not apply if the circumstances show that the consumer did not rely on, or that it was unreasonable for the consumer to rely on, the skill or judgment of the supplier.

(4)   This section does not apply to a supply of services of a professional nature by a qualified architect or engineer.”

37. The following terms relevant to ss 60 and 61 are defined in s 2 of the ACL:

“services includes:

(a)   any rights (including rights in relation to, and interests in, real or personal property), benefits, privileges or facilities that are, or are to be, provided, granted or conferred in trade or commerce; and

(b)   without limiting paragraph (a), the rights, benefits, privileges or facilities that are, or are to be, provided, granted or conferred under:

(i)   a contract for or in relation to the performance of work (including work of a professional nature), whether with or without the supply of goods; or

(ii)   contract for or in relation to the provision of, or the use or enjoyment of facilities for, amusement, entertainment, recreation or instruction; or

(iii)   a contract for or in relation to the conferring of rights, benefits or privileges for which remuneration is payable in the form of a royalty, tribute, levy or similar exaction;

…

but does not include rights or benefits being the supply of goods or the performance of work under a contract of service.

supply, when used as a verb, includes:

(a)   in relation to goods—supply (including re‑supply) by way of sale, exchange, lease, hire or hire‑purchase; and

(b)   in relation to services—provide, grant or confer;

and, when used as a noun, has a corresponding meaning, and supplied and supplier have corresponding meanings.”

38. Section 3 of the ACL defines “consumer”. It is not necessary to reproduce the definition as there is no dispute that Mr Moore and the Group Members satisfied it.

39. Section 64 of the ACL provides as follows:

“Guarantees not to be excluded etc. by contract

(1)   A term of a contract (including a term that is not set out in the contract but is incorporated in the contract by another term of the contract) is void to the extent that the term purports to exclude, restrict or modify, or has the effect of excluding, restricting or modifying:

(a)   the application of all or any of the provisions of this Division; or

(b)   the exercise of a right conferred by such a provision; or

(c)   any liability of a person for a failure to comply with a guarantee that applies under this Division to a supply of goods or services.

(2)   A term of a contract is not taken, for the purposes of this section, to exclude, restrict or modify the application of a provision of this Division unless the term does so expressly or is inconsistent with the provision.”

40. Part 5-2 of the ACL deals with “Remedies”. Section 236(1) of the ACL provides as follows:

“(1)   If:

(a)   a person (the claimant) suffers loss or damage because of the conduct of another person; and

(b)   the conduct contravened a provision of Chapter 2 or 3;

the claimant may recover the amount of the loss or damage by action against that other person, or against any person involved in the contravention.”

41. Part 5-4 of the ACL is headed “Remedies relating to guarantees”. It includes the following provisions:

“267   Action against suppliers of services

(1)   A consumer may take action under this section if:

(a)   a person (the supplier) supplies, in trade or commerce, services to the consumer; and

(b)   a guarantee that applies to the supply under Subdivision B of Division 1 of Part 3-2 is not complied with; and

(c) unless the guarantee is the guarantee under section 60—the failure to comply with the guarantee did not occur only because of:

(i)   an act, default or omission of, or a representation made by, any person other than the supplier, or an agent or employee of the supplier; or

(ii)   a cause independent of human control that occurred after the services were supplied.

…

(3)   If the failure to comply with the guarantee cannot be remedied or is a major failure, the consumer may:

(a)   terminate the contract for the supply of the services; or

(b)   by action against the supplier, recover compensation for any reduction in the value of the services below the price paid or payable by the consumer for the services.

(4)   The consumer may, by action against the supplier, recover damages for any loss or damage suffered by the consumer because of the failure to comply with the guarantee if it was reasonably foreseeable that the consumer would suffer such loss or damage as a result of such a failure.

(5)   To avoid doubt, subsection (4) applies in addition to subsections (2) and (3).

268    When a failure to comply with a guarantee is a major failure

A failure to comply with a guarantee referred to in section 267(1)(b) that applies to a supply of services is a major failure if:

(a)   the services would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure; or

(b)   the services are substantially unfit for a purpose for which services of the same kind are commonly supplied and they cannot, easily and within a reasonable time, be remedied to make them fit for such a purpose …

…

275   Limitation of liability etc.

If:

(a)   there is a failure to comply with a guarantee that applies to a supply of services under Subdivision B of Division 1 of Part 3‑2; and

(b)   the law of a State or a Territory is the proper law of the contract;

that law applies to limit or preclude liability for the failure, and recovery of that liability (if any), in the same way as it applies to limit or preclude liability, and recovery of any liability, for a breach of a term of the contract for the supply of the services.”

42. Scenic says that the law referred to in s 275 of the ACL for the purposes of the present case is the Civil Liability Act.

Civil Liability Act

43. Section 3A of the Civil Liability Act relevantly provides as follows:

“Provisions relating to operation of Act

…

(2) This Act (except Part 2) does not prevent the parties to a contract from making express provision for their rights, obligations and liabilities under the contract with respect to any matter to which this Act applies and does not limit or otherwise affect the operation of any such express provision.

(3)   Subsection (2) extends to any provision of this Act even if the provision applies to liability in contract.”

Part 2 of the Civil Liability Act includes ss 11-26.

44. Section 11A of the Civil Liability Act provides as follows:

“Application of Part

(1)   This Part applies to and in respect of an award of personal injury damages …

(2)   This Part applies regardless of whether the claim for the damages is brought in tort, in contract, under statute or otherwise.

(3)   A court cannot award damages, or interest on damages, contrary to this Part.

…”

45. “Personal injury damages” mean “damages that relate to the death of or injury to a person”. “Injury” means “personal injury”, and includes “impairment of a person’s physical or mental condition”. [28]

    28. Both definitions are in Civil Liability Act, s 11.

46. Section 16(1) of the Civil Liability Act provides as follows:

“No damages may be awarded for non-economic loss unless the severity of the non-economic loss is at least 15% of a most extreme case.”

47. The following definitions are relevant to s 16:[29]

“court includes tribunal, and in relation to a claim for damages means any court or tribunal by or before which the claim falls to be determined.

damages includes any form of monetary compensation …

non-economic loss means any one or more of the following:

(a)   pain and suffering,

(b)   loss of amenities of life,

…”

29. Civil Liability Act, s 3. These definitions apply to the whole of the Civil Liability Act.

Necessity for leave

48. The orders made in favour of Mr Moore are final because they determine his claim against Scenic. Nonetheless, Scenic requires leave to appeal against the judgment because the matter in issue does not amount to $100,000 or more. [30]

    30. Supreme Court Act 1970 (NSW) (Supreme Court Act), s 101(2)(r)(i).

49. The orders, insofar as they incorporate the answers to the questions in the Statement of Issues, are interlocutory. This is because the answers do not finally determine the claims of Group Members who booked and paid for Cruises 1-9 and 11. Accordingly, Scenic requires leave to appeal from the orders incorporating the answers. [31]

    31. Supreme Court Act, s 101(2)(e).

50. Mr Moore accepted that the answers relating to Cruises 10, 12 and 13 effectively dispose of the claims brought by Group Members who booked and paid for those Cruises even though no final orders to that effect have yet been made. Mr Moore has not sought leave to cross-appeal from the orders insofar as they incorporate the answers relating to Cruises 10, 12 and 13.

51. Scenic’s draft amended notice of appeal (Notice of Appeal) contains over 60 grounds of appeal. Only a few were not pressed. As Scenic’s notice of appeal raises some issues of principle and as the issues in dispute have been fully argued, it is appropriate that Scenic be granted leave to appeal.

52. Mr Moore filed an “Amended Draft Notice of Contention” (Notice of Contention). The grounds identified in the Notice of Contention arise only if this Court accepts Scenic’s contention that the services to be supplied to Mr Moore and Group Members were co-extensive with or delimited by Scenic’s contractual obligations under the Terms and Conditions.

Mr Moore’s pleaded case

53. The final version of Mr Moore’s pleaded case was the Third Amended Statement of Claim (3ASC). The 3ASC describes the Group Members as each person who:

• booked and paid for river cruises in Europe scheduled from 10 May 2013 to 14 June 2013;

• acquired the services of Scenic concerning the operation of river cruises in Europe during the relevant period; and

• suffered loss or damage because of Scenic’s conduct in contravention of a provision of chapter 3 of the ACL (para 2).

The definition is subject to exclusions that are not relevant for present purposes.

54. The 3ASC alleges that Mr Moore and the Group Members acquired Scenic’s “services” as “consumers” for the purposes of the ACL (para 4). The particulars to this allegation describe the “services” as follows:

“As to ‘services’, rights, benefits, privileges or facilities were provided, or were to be provided, by [Scenic] to [Mr Moore] and all group members in trade or commerce, to arrange for and facilitate travel cruises along European rivers for the use, amusement, entertainment, recreation or instruction of the group members. Without limitation, the services included [Scenic] arranging for tours and monitoring and assessing (and thereafter communication with [Mr Moore] and group members), up to the dates for departure for the cruises, whether their tour itineraries could proceed in accordance with the existing arrangements, or should be varied, cancelled or delayed.”

The services are said to have been supplied in trade or commerce (para 5).

55. Scenic is alleged to have contravened each of the Consumer Guarantees (paras 6, 7, 8). The allegation that Scenic contravened the Purpose Guarantee identifies the “particular purpose” made known by Mr Moore and the Group Members as:

“the experience of enjoying travel and accommodation, by cruise, along European rivers to a range of tourist destinations.” (para 7)

The particular purpose is said to have been impliedly made known to Scenic by:

“the nature of the relationship between [Mr Moore] and group members and [Scenic] (the supply of recreational services to each and every one of them), the purpose of the transactions that [Mr Moore] and group members entered into with [Scenic] and the booking of and payment for a cruise holiday along the rivers by all of them”.

56. The “result” Mr Moore and Group Members wished to achieve by the services acquired from Scenic is defined in much the same terms as the “particular purpose” and is said to have been made known to Scenic in the same manner as the particular purpose (para 8).

57. It is alleged that from about April and early May 2013 there was extensive flooding in Europe causing river levels to rise along the paths of the cruises arranged by Scenic (para 10). Scenic should have known from about 3 May 2013 that the rising levels would or were likely to substantially disrupt for a period of about six weeks the enjoyment or passengers scheduled to embark on river cruises (para 11).

58. Scenic is alleged to have contravened the Care Guarantee by failing to exercise due care in supplying the services (para 12). The alleged contraventions of the Care Guarantee include:

“(a)   failing to make any, or any adequate, enquiry, prior to the relevant period, into the nature and extent of flooding and rising river levels in Europe by the severe rainfall in late April and early May 2013;

(b)   failing to determine, prior to the relevant period, that the nature and extent of flooding and rising river levels in Europe was such that by late April and early May 2013, it was inconceivable that the scheduled river cruises could proceed otherwise than without by substantial disruption or delay;

…

(d)   failing, from about 3 May 2013, to cancel or delay the tours of the plaintiff and group members scheduled to occur in the relevant period, pending the receipt of information that would lead reasonable tour operators to conclude that the flooding and rising river levels had sufficiently abated so as to make it likely that the plaintiff and group members could substantially enjoy the benefit of travelling to the scheduled tour destinations by river cruise;

(e)   failing, prior to the embarkation of the plaintiff and some group members on various the scheduled cruises, to unilaterally cancel their tours and offer them the closest available tour or cruise departure (after forming a reasonable view as to when the river levels would recede so as to enable the cruises to resume along the rivers);

…

(eb)   falling, after the embarkation of the plaintiff and some group members on various scheduled cruises, to offer to passengers on those cruises, the opportunity to cancel their tours and offer them the closest available tour or cruise departure (after forming a reasonable view as to when the river levels would recede so as to enable the cruises to resume along the rivers;

…

(g)    failing, from about 3 May 2013, to warn the plaintiff and group members, prior to their departure from their departing countries to commence their scheduled tours, that the weather and river conditions in Europe were such that it was unlikely that the plaintiff and group members would be able to enjoy, or substantially enjoy, the benefit of travelling to scheduled tour destinations by river cruise.”

59. The 3ASC pleads that Mr Moore and the Group Members suffered loss or damage because of Scenic’s contraventions of the Consumer Guarantee in that:

“having embarked upon their respective tour itineraries during the relevant period they did not experience, or substantially experience, travel and accommodation on cruises along the European rivers and touring to scheduled destinations by river cruise at all”.

60. Mr Moore’s claims to have suffered loss and damage comprising:

“(a)   the price of the tour;

(b)   a reduction [in] the value of services below the price paid by him or those services;

(c)   inconvenience, distress and disappointment; and

(d)   loss of the opportunity to consider and accept any proposed alternative tour or cruise offered by [Scenic] and (should such alternative have been rejected by [Mr Moore]) to terminate arrangements with [Scenic] and receive a full refund of all amounts paid to [Scenic].”

61. The balance of the 3ASC pleads a cause of action for money had and received (paras 17AA-17AF), unconscionable conduct by Scenic and unjust provisions in the Terms and Conditions (paras 17A-17I) and unfair provisions in the Terms and Conditions (para 17J).

62. The 3ASC identified a number of “common questions”, including the following:

• Scenic’s knowledge of or inquiries about river conditions during the relevant period;

• whether the Consumer Guarantee required Scenic to cancel or delay cruises, offer refunds to Group Members or disclose information concerning known risks to the scheduled cruises and tours;

• whether the Care Guarantee required Scenic to disclose to Mr  Moore and Group Members in advance of scheduled departures information know to Scenic about rising river levels and the risk of disruption to scheduled cruises and tours;

• whether the Purpose and Result Guarantees were satisfied in circumstances where Scenic failed to cancel or delay tours prior to departure and offer Group Members alternatives; and

• the heads of compensable damage.

The common questions identified in the 3ASC do not include the proper interpretation of “services” as that term is defined in the ACL.

Common questions

Statement of Issues

63. As the primary Judge explained, the hearing was conducted on the basis that all issues arising out of Mr Moore’s individual claim concerning Cruise 8 would be determined, while common questions of law and fact affecting the claims of Group Members would also be identified and addressed. The Statement of Issues was intended to identify common questions of law and fact arising in the representative proceedings. However, his Honour expressly contemplated that the parties would have the opportunity to consider and make submissions on findings of fact relevant to the common issues. [32] His Honour considered that identification of the common issues and possible findings could await a further judgment. [33]

    32.    Primary Judgment at [55]-[56].

    33. Primary Judgment at [56]. His Honour said that this course was not atypical in representative actions, citing Peterson v Merck Sharp & Dohme (Aust) Pty Ltd [2010] FCA 180 (Jessup J). This decision was a sequel to the Full Federal Court’s decision in Merck Sharp & Dohme (Aust) Pty Ltd v Peterson [2009] FCAFC 26.

64. The Statement of Issues went through various iterations as the proceedings progressed. The parties filed competing versions of the Statement of Issues in December 2015. Mr Moore’s version included a significantly greater number of questions than the version advanced by Scenic. At a pre-trial hearing held on 12 February 2016, Scenic submitted that some questions proposed by Mr Moore did not raise questions common to the claims of all Group Members. The primary Judge accepted this submission but proposed that a question should be added to the Statement of Issues asking which of the answers to the preceding questions were common to all, some or none of the Group Members. This suggestion was adopted by inserting Question 22 in the Statement of Issues. [34]

    34. Question 22 and the answer to it are reproduced at [24] above.

65. The position was complicated when Mr Moore applied during the course of the trial to amend his pleading. The amendments introduced allegations that Scenic breached the Care Guarantee by failing to cancel or to give Group Members the option to cancel cruises prior to embarkation. The amendments also alleged that Scenic breached the Care Guarantee by failing to give Group Members the opportunity to cancel four of the cruises after the date of embarkation. The primary Judge granted Mr Moore leave to amend, [35] although the parties seem to have given little attention to whether a failure by Scenic to give Group Members an opportunity to cancel by reason of circumstances arising after embarkation could have entitled them to compensation or damages.

    35.    The primary Judge explained his decision in the Primary Judgment at [58]-[73].

66. The amendments expanded the scope of the trial. They also necessitated amending the Statement of Issues to accommodate the new allegations. As already noted, this was done by the parties handing up an amended Statement of Issues on the last day of the trial. [36]

    36. See at [13] above.

67. The directions made in the Primary Judgment afforded the parties the opportunity to make submissions on the answers to be given to the questions identified in the Statement of Issues. At the hearing held on 15 November 2017 Mr Abadee, who appeared with Mr Liu for Mr Moore, submitted that the findings made in the Primary Judgment required the Statement of Issues to be further amended. Mr Abadee pointed out that his Honour had rejected Mr Moore’s claim that passengers booked on Cruises 6 and 7 should have been given an opportunity to cancel prior to embarkation. However, his Honour had also found that the passengers on Cruises 6 and 7 should have been given the option to cancel after the date of embarkation.

68. The primary Judge accommodated the findings concerning Cruises 6 and 7 by adding answers to Question 7A (which asked whether the Consumer Guarantees required Scenic to give passengers the option to cancel certain specific cruises after the date of embarkation). Thus the final form of the Statement of Issues was not settled until his Honour made orders on 15 November 2017.

Difficulties with the Statement of Issues

69. The High Court has emphasised that the subject matter of representative proceedings of the kind authorised by Part 10 of the Civil Procedure Act is a claim which gives rise to common questions of law and fact. [37] It is, however, not necessary that the representative proceedings resolve or are likely to resolve the claims of all group members. [38] For example, group members may have individual claims that do not form part of the subject matter of the representative proceedings. For this reason the legislation empowers the Court, where the determination of questions common to all group members will not finally resolve all their claims, to give directions in relation to the determination of the remaining questions. [39]

    37. Timbercorp Finance Pty Ltd (in liq) v Collins (2016) 259 CLR 212; [2016] HCA 44 (Timbercorp) at [47]-[49] (French CJ, Kiefel, Keane and Nettle JJ), referring to ss 33C and 33H of the Supreme Court Act 1986 (Vic). The equivalent provisions in New South Wales are ss 157(1) and 161 of the Civil Procedure Act.

    38. Timbercorp at [50].

    39. Civil Procedure Act, ss 168, 169.

70. The identification of substantial common questions of law and fact is a critical element in the conduct of representative proceedings. [40] In the present case, the Statement of Issues in both its preliminary and final versions, asked questions that were not common to all Group Members. For example, a number of the so-called “common questions” concerned Scenic’s knowledge of river conditions at different times and in different geographic locations. (The river journey from Amsterdam to Budapest is some 1,700 kilometres in length.) Similarly, the experiences of Group Members once on board the vessels obviously varied considerably, depending on which of the 13 cruises they embarked.

    40. See s 157(1)(c) of the Civil Procedure Act reproduced at [32] above.

71. By way of illustration, Question 6 asks with respect to each cruise whether the content “of all or any of the [C]onsumer [G]uarantees” required Scenic:

“to warn [Mr Moore] and [G]roup [M]embers prior to them each embarking upon their (respective) scheduled cruises that there was a real or substantial prospect, or risk, that they would not, or were not, likely to experience or enjoy travel and accommodation by cruise along the rivers covered by their routes, without substantial disruption.”

The answers to this question, assuming it to be capable of answer, requires separate consideration of the circumstances relating to each of the cruises, if not to the individual circumstances of each Group Member booked on a particular cruise. The question also refers to all three Consumer Guarantees notwithstanding that each raises quite distinct issues.

72. The orders made by the primary Judge attempt to deal with this difficulty by giving separate answers to “common questions” for each of the 13 cruises. But this course was adopted at the conclusion of the trial, rather than at its outset. The trial itself was conducted without a clear differentiation between questions common to all Group Members and those common only to particular sub-categories (such as passengers booked on a specific cruise). It is therefore not entirely surprising that the parties disagreed in this Court as to precisely what matters were in issue at the trial.

73. The form of the questions included in the Statement of Issues has created further difficulties. Question 8 asks with respect to each cruise whether Scenic failed to comply with the Consumer Guarantees by reason of the circumstances pleaded by Mr Moore. Question 8 identifies the circumstances pleaded as “essentially”:

• Scenic’s failure to unilaterally cancel or offer passengers the opportunity to cancel the cruises before or after embarkation;

• Scenic’s breach of its obligation to warn; and

• Scenic’s breach of its obligation to offer options before and after embarkation.

74. The answers to Question 8 identify which of the three Consumer Guarantees (if any) Scenic failed to comply with in relation to each of the 13 cruises, but the answers do not specify the nature of Scenic’s contraventions. For example, Scenic is said to have contravened all three Consumer Guarantees applying to Cruise 5, but the answers to Question 8 do not specify the manner in which Scenic contravened each of the Consumer Guarantees.

75. If the answer to Question 8 is read with the answers to Questions 5, 7 and 7A, it can be inferred that his Honour found that Scenic failed to comply with the Care Guarantee by failing to cancel Cruise 5 no later than 3 June 2013 (after the date of embarkation). But, none of the answers to the other questions reveals the basis for a finding that Scenic’s conduct in relation to Cruise 5 failed to comply with the Purpose and Result Guarantees. The answer to Question 4 records that all three Guarantees applied to Cruise 5, but none of the other answers identifies the conduct of Scenic that is said to have contravened the Purpose and Result Guarantees.

76. The failure to explain the basis for the finding that Scenic contravened the Purpose and Result Guarantees may be due to the incompleteness of the summary of Mr Moore’s pleaded case contained in Question 8. The summary makes no reference to para 13 of the 3FASC (a paragraph was substantially amended during the trial). Paragraph 13 of the 3FASC alleges that:

“the services provided by [Scenic] were not reasonably fit for the particular purpose for which they were acquired, in that [Mr Moore and Group Members] did not enjoy, or substantially enjoy, the benefit of travel and accommodation by cruising European rivers to scheduled destinations”.

77. The incompleteness of the answers to the “common questions” reflects the dangers of leaving the finalisation of common questions of law and fact to the end of the hearing. It also reflects the length and complexity of the “common questions” identified in the present case, some of which conflate a number of distinct concepts. Moreover, the answers to the “common questions” do not accurately record all material findings of fact made by the primary Judge.

Scenic’s application to amend its Notice of Appeal

78. During the hearing of the appeal, Mr Williams sought leave to amend Scenic’s Notice of Appeal to challenge answers to a number of questions contained in the Statement of Issues. To a considerable extent the amendment application attempted to revisit issues dealt with in Beech-Jones J’s interlocutory decision[41] , against which Scenic did not seek leave to appeal. Mr Williams frankly acknowledged that he was motivated to seek leave to amend because:

“part of the problem here is that things have been perhaps considered to be common questions maybe shouldn’t have been, and there should have been some subgroups and the like that should have been identified”.

41. See at [12] above.

79. The additional grounds sought to be added to the Notice of Appeal were the following:

“Ground 8AA

1.   It was not appropriate for the Court to answer the Questions contained in the Amended Statement of Issues number 5, 5A, 6, 7, 7A, 8, 15, 16, 17, 18, 19 and 20 (Answers) otherwise than by an answer to the effect:

‘Not appropriate to answer’

Ground 8AB

2.   Answer 22 of the Answers should have identified that the Questions referred to in Ground 8AA were not questions common to all group members who resided in Australia and Vanuatu.”

80. The Court refused to grant Scenic leave to amend the Notice of Appeal. It did so primarily because Scenic had not sought leave to appeal from the decision of Beech-Jones J and the application to amend was made too late. The issue had not been identified in the original Notice of Appeal and had not been raised during the case management hearings in this Court. Had the amendment been allowed the scope of the appeal and the issues requiring determination would have been materially altered. Furthermore, the grounds belatedly propounded by Scenic departed markedly from the way in which the parties conducted the trial.

81. This is not to say that a timely challenge to the interlocutory decision would have lacked merit. The form of the “common questions” has presented significant difficulties, particularly having regard to the very limited evidence given in relation to some of the cruises the subject of the appeal. It would have been preferable for these issues to have been addressed and resolved at an early stage in the proceedings. [42]

    42.    See Practice Note SC Gen 17: Supreme Court – Representative Proceedings, cll 4.2(c), 7.1(c), 8.1(e).

Question 8 and s 61(3) of the ACL

82. As has been noted, the answers to Question 8 record that Scenic contravened the Purpose Guarantee in relation to Cruises 1-9 and 11. The answers make no reference to s 61(3) of the ACL, which provides that the purpose guarantee does not apply:

“if the circumstances show that the consumer did not rely on, or that it was unreasonable for the consumer to rely on, the skill and judgment of the supplier”.

83. Scenic pleaded s 61(3) of the ACL as a defence to the claims by Mr Moore and Group Members founded on Scenic’s contravention of the Purpose Guarantee. Scenic submitted in this Court that although the primary Judge addressed the s 61(3) defence when determining Mr Moore’s individual claim, his Honour expressly reserved Scenic’s right to rely on s 61(3) as a defence to the claims made on behalf of Group Members.

84. Scenic’s submission receives support from the Primary Judgment. After finding that Scenic had not made out the s 61(3) defence to Mr Moore’s claim (a finding that is not challenged), the primary Judge continued as follows:[43]

“Scenic did however submit that the Court should not make a similar finding with respect to any other group members including those who had given evidence, because the Court was not determining their claims. Notwithstanding the fact that evidence was given by some group members, it would be inappropriate to reach a concluded view on this aspect with respect to these claims”. (Emphasis added.)

43. Primary Judgment at [438].

85. There may be an issue as to whether Scenic can realistically expect to make out the s 61(3) defence if Group Members otherwise establish the elements of a contravention of the Purpose Guarantee. [44] There may also be a question as to whether, as Scenic suggests, it is entitled to have the Court individually assess whether each Group Member relied on Scenic’s judgment and skill. Nonetheless, the passage quoted above from the Primary Judgment indicates that his Honour recognised that a finding that Scenic contravened the Purpose Guarantee cannot be made in favour of Group Members until the s 61(3) defence is addressed. It therefore seems to follow that the answers to Question 8 must be amended to make it clear that no finding has yet been made that Scenic contravened the Purpose Guarantee in relation to Cruises 1-9 and 11.

    44. Cf Graham Barclay Oysters Pty Ltd v Ryan (2000) 102 FCR 307; [2000] FCA 1099 at [522]-[525] (Lindgren J, Lee J agreeing).

405. The first legislation in Australia providing expressly for representative proceedings was enacted by the Commonwealth Parliament in 1991. [260] The Second Reading Speech identified the basic objectives of the new statutory regime as follows: [261]

“The new procedure will enhance access to justice, reduce the costs of proceedings and promote efficiency in the use of court resources … Such a procedure is needed for two purposes. The first is to provide a real remedy where, although many people are affected and the total amount at issue is significant, each person's loss is small and not economically viable to recover in individual actions. It will thus give access to the courts to those in the community who have been effectively denied justice because of the high cost of taking action. The second purpose of the Bill is to deal with the situation where the damages sought by each claimant are large enough to justify individual actions and a large number of persons wish to sue the respondent. The new procedure will mean that groups of persons, whether they be shareholders or investors, or people pursuing consumer claims, will be able to obtain redress and do so more cheaply and efficiently than would be the case with individual actions.”

Part 10 of the Civil Procedure Act is modelled on the Commonwealth legislation and shares its objectives.

260. Federal Court of Australia Amendment Act 1991 (Cth), inserting Part IVA into the Federal Court of Australia Act 1976 (Cth).

261.    Cth Parl Deb, 14 November 1991, at 3174-3175 (Attorney-General).   

407. Representative proceedings present procedural complexities and potential pitfalls that unless appreciated and properly addressed create a serious risk that the objectives of the statutory regime will not be realised. The Supreme Court’s Practice Note relating to representative proceedings [262] expressly acknowledges the complexities and establishes procedures designed to facilitate the “prompt and efficient resolution” of such proceedings. These include procedures designed to ensure the early identification of the common questions of law or fact which are said to arise in the proceedings and the early resolution of any issues concerning the identification of the common questions. [263]

     262.    Practice Note SC Gen 17: Supreme Court – Representative Proceedings (Practice Note 17).

     263.    Practice Note 17 at [4.2(c)], [7.1(c)].

408. In the present case the parties never satisfactorily identified common questions of law or fact suitable for resolution in the representative proceedings. The Statement of Issues, which was said to identify the common questions, was not finalised until the last day of the hearing and even then was subsequently amended. In part the delay was a consequence of the late amendments to Mr Moore’s pleadings which, in the event, seem to have added little of value to the Group Members’ case. More significantly, as the parties accepted in this Court, most of the questions identified in the Statement of Issues are not in truth common questions of law or fact. It is therefore not surprising that there was disagreement between the parties and a good deal of confusion as to what matters had been in issue during the six day hearing before the primary Judge. Nor is it surprising that numerous issues remain to be determined.

409. If representative proceedings are to be an efficient and prompt means of resolving multiple claims, it is essential that common questions of law or fact be identified early in the proceedings and that the substantive hearing be directed to resolving these questions. This is particularly important in proceedings where each group member has only a modest claim for damages or compensation, as is typically the case in representative proceedings brought on behalf of consumers. As the present case demonstrates, a failure to be rigorous in identifying common questions of law or fact often leads to inordinate delay, disproportionate expense and frustration for all parties to the litigation.

410. BARRETT AJA: I have had the advantage of reading in draft the comprehensive judgment prepared by Sackville AJA. Orders and directions should be made as his Honour proposes for the reasons he gives.

**********

APPENDIX A

APPENDIX B

APPENDIX C

Question 1:

What was the nature or character of the “services” which the defendant was required to supply to the plaintiff and group members?

Answer:

Scenic Tours Pty Ltd (“Scenic”) provided recreational services constituted by a river cruise which included 5-star luxurious all-inclusive accommodation, dining, entertainment and travel by cruise along European rivers and stopping at certain destinations. In addition, Scenic provided information services, in advance and during each cruise, concerning events and circumstances and their impacts upon passengers’ enjoyment of their cruises and Scenic’s ability to provide its services in a timely manner. Further, Scenic provided management services to oversee, organise and manage the delivery of the cruise and the added services prior to embarkation and whilst the cruises were underway.

Question 2:

Were the services which the defendant was required to supply to be performed wholly or partly outside Australia?

Answer:

Partly outside Australia.

Question 3:

Do the provisions of the Australian Consumer Law apply to services performed wholly or partly outside Australia?

Answer:

Yes.

Question 4:

In respect to each of the cruises scheduled to proceed during the period from 10 May 2013 to 14 June 2013 (“the relevant period”) along the:

(a)   ‘Jewels of Europe’ (Amsterdam to Budapest and Budapest to Amsterdam) routes; and

(b)   ‘South of France’ route (“the pleaded routes”)

was there a guarantee that the services which the defendant supplied to the plaintiff and group members:

1. would be rendered with due care and skill;

2. would be reasonably fit for the purpose of experiencing and enjoying travel and accommodation, by cruise, along the rivers (covered by the said routes) to a range of tourist destinations;

3. might reasonably be expected to achieve the result of experiencing and enjoying travel and accommodation, by cruise, along the rivers (covered by the said routes) to a range of tourist destinations

pursuant to ss 60, 61(1) and 61(2) (respectively) of the Australian Consumer Law?

Answer:

Yes

Question 5:

Prior to the embarkation of each of the cruises scheduled to proceed during the relevant period along the pleaded routes, what was the defendant’s knowledge (actual, imputed or constructive) of the river levels and other consequences of extensive flooding along the route in question and the extent to which the prospective experience and enjoyment of passengers on each of those scheduled cruises was likely to be disrupted?

Answer:

Cruise 1: In respect to group members on Cruise FRCR 190513.1, by 16 May 2013, Scenic knew that the cruise which was then sailing north could not establish a final disembarkation point. Waters on the Saone and Rhone Rivers had been very high for most of May. Scenic would have realised that there was a significant likelihood that the cruise due to commence on 20 May 2013 would not be able to proceed smoothly and without interruption, particularly when Scenic had no information to suggest there was likely to be a drop in the height of the Saone and Rhone Rivers.

Cruise 4: In respect to group members on Cruise STC 270513.1, Scenic knew by 26 May 2013 that the River Main was closed and that high water was threatening the program for Cruise 2.

Cruise 5: In respect to group members on Cruise STC270513.2, Scenic knew by 26 May 2013 that the River Main was closed and that high water was threatening the program for Cruise 2.

Cruise 6: In respect to group members on Cruise STC290513.1, Scenic knew of the circumstances affecting Cruises 2–3, after those cruises had embarked (as found in paragraph [485] of Moore (No.2)), and knew of the circumstances affecting Cruises 4-5 before those cruises had embarked (as found in paragraphs [525] and [544] of Moore (No.2)), as at 28 May 2013.

Cruise 7: In respect to group members on Cruise STC 290513.2, Scenic knew of the circumstances affecting Cruises 2–3, after those cruises had embarked (as found in paragraph [485] of Moore (No.2)), and knew of the circumstances affecting Cruises 4-5 before those cruises had embarked (as found in paragraphs [525] and [544] of Moore (No.2)), as at 28 May 2013.

Cruise 8: In respect to group members on Cruise STC 030613.1, Scenic knew of the circumstances affecting Cruises 2–7 (inclusive), as described in these Answers, before and after those cruises had respectively embarked, as at 2 June 2013. Further, by 3 June 2013, Scenic knew that ships were stuck on the river and were unlikely to move for many days and that a significant component of the cruise would be undertaken as a motor coach tour by land and other cruise companies had formed a view that it was appropriate to cancel the cruise departing at that time

Cruise 9: In respect to group members on Cruise EGRC 080613.1, Scenic knew of the circumstances affecting Cruises 2-8 (inclusive), as described in these Answers, before and after those cruises had respectively embarked, as at 7 June 2013. Further by 7 June 2013, the defendant knew that there was no ship to embark upon and that situation was not likely to change in the near future, the high water levels and flooding was unlikely to allow for uninterrupted cruising on the rivers.

Cruise 10: In respect to group members on cruise STC 100613.1, Scenic knew of the circumstances affecting Cruises 2-9 (inclusive), as described in these Answers, before and after those cruises had respectively embarked, as at 9 June 2013. Further, by 8 June 2013, Scenic knew that there were significant interruptions to cruising along the rivers: the lock at Hausen on the Main/Danube Canal was closed and it was expected to reopen in a few days but it was not clear when; ships could not sail between Nuremburg and Bamberg in either direction; it would be a week before ships could cruise along the Main River. It was apparent to Scenic that the cruise could not be expected to proceed without significant disruption to the planned itinerary.

Cruise 11: In respect to group members on Cruise STC 100613.2, Scenic knew of the circumstances affecting Cruises 2-9 (inclusive), as described in these Answers, before and after those cruises had embarked, as at 9 June 2013,. Further, by 8 June 2013, Scenic knew that there would be no ship in Budapest for embarkation, and passengers would be moved to the nearest ship, docked in Krems, where it had been stuck since earlier in the month. The water level on the Danube continued to be high, the Hausen lock was still inoperative and not expected to be operating for a number of days and the re-opening dates for parts of the Danube and Main/Danube Canal were largely unknown. Scenic knew that there was a real prospect that the cruise would not be able to be completed without interruptions.

Cruise 13: In respect to group members on Cruise STC 120613.2, Scenic knew of the circumstances affecting Cruises 2-11 (inclusive), as described in these Answers, before and after those cruises had embarked, as at 11 June 2013. Further, by 11 June 2013, Scenic knew that there would be no cruising between Vienna and Budapest and that there was a real risk of significant interruption to the cruise and that cruising was unlikely to take place in its entirety for the whole of the itinerary.

Question 5A:

Following the embarkation of each of the cruises scheduled to proceed during the relevant period along the pleaded routes, what was the defendant’s knowledge (actual, imputed or constructive) of the river levels and other consequences of extensive flooding along the route in question and the extent to which the actual experience and enjoyment of passengers on each of those scheduled cruises had been, was being and would likely continue to be disrupted?

Answer:

Cruise 2: In respect to group members on Cruise STC 200513.2, Scenic knew by 26 May 2013 that the River Main was closed and that high water was threatening the program for Cruise 2 and that by 28 May 2013, the ship was to have an enforced stay in Bamberg.

Cruise 3: In respect to group members on Cruise EGFC 250513.1, Scenic knew by 28 May 2013, ships would soon be unable to pass under a bridge near Frankfurt, due to high water levels.

Cruise 4: In respect to group members on Cruise STC270513.1by 30 May 2013, in addition to knowledge of Cruises 2 and 3, Scenic knew that three ships were docked in three locations along the river at Mainz, Bamberg and Krems. By 29 May 2013, it was clear that there was, or was likely to be, a significant interruption to this cruise. The ship upon which the passengers were embarked could not and would not be likely to be able to sail further east past Mainz. Scenic was confronted with the prospect of changing a river cruise effectively to a motor coach tour from a stationary ship with excursions along the way.

Cruise 5: In respect to group members on Cruise STC 270513.2, Scenic’s knowledge, or knowledge which, acting reasonably, it would be expected to acquire, was the same as for Cruise 4. The one difference was that a successful passage at the western end of the Rhine River was always likely to be more feasible than passage in an easterly direction between Krems and Budapest. By the time the ship was docked in Melk and likely to move the following day only to Krems on 30 May 2013, it was apparent that the other ships on the river at that time were also docked in Bamberg and Mainz, and unlikely to move.

Cruise 6: In respect to group members on Cruise STC 290513.1, by 31 May 2013, Scenic knew of the circumstances affecting Cruises 2-5 (inclusive) and that there was a significant prospect that the cruise would not be able to proceed in accordance with the itinerary and that what was in prospect was a motor coach trip through the balance of the itinerary with accommodation provided on stationary, docked ships.

Cruise 7: In respect to group members on Cruise STC 290513.2, by 31 May 2013, Scenic knew of the circumstances affecting Cruises 2-5 (inclusive) and that there was a significant prospect that the cruise would not be able to proceed in accordance with the itinerary and that what was in prospect was a motor coach trip through the balance of the itinerary with accommodation provided on stationary, docked ships.

Cruise 8: in respect to group members on Cruise STC 030613.1, from 3 June 2013, Scenic knew of the circumstances actually affecting that cruise referred to at [633]‑[643] in Moore (No.2) and in addition those circumstances affecting this cruise that it knew before the embarkation of this cruise, and as well the circumstances affecting Cruises 2-7 (inclusive).

Cruise 9: in respect to group members on Cruise EGRC 080613.1 from 8 June 2013, Scenic knew of the circumstances affecting that cruise referred to at [657]‑[664] in Moore (No.2), in addition to circumstances affecting this cruise that it knew before the embarkation of this cruise and the circumstances affecting Cruises 2-8 (inclusive).

Cruise 10: in respect to group members on Cruise STC 100613.1 from 10 June 2013, Scenic knew of the circumstances affecting that cruise referred to at [685] and [692] in Moore (No.2) in addition to circumstances affecting this cruise that it knew before the embarkation of this cruise and the circumstances affecting Cruises 2-9 (inclusive) and Cruise 11.

Cruise 11: in respect to group members on Cruise STC 100613.2, from 10 June 2013, Scenic knew of the circumstances affecting that cruise referred to at [700]‑[704] in Moore (No.2), in addition to circumstances affecting this cruise that it knew before the embarkation of this cruise and the circumstances affecting Cruises 2-10 (inclusive).

Cruise 12: in respect to group members on Cruise STC 120613.1, from 12 June 2013, Scenic knew of the circumstances affecting that cruise referred to at [719] in Moore (No.2), in addition to circumstances affecting this cruise that it knew before the embarkation of this cruise and the circumstances affecting Cruises 2-11 (inclusive)

Question 6:

In respect to each of the cruises scheduled to proceed during the relevant period along the pleaded routes did the content of any or all of the consumer guarantees in ss 60, 61(1) or 61(2) of the Australian Consumer Law require the defendant to warn the plaintiff and group members, prior to them each embarking upon their (respective) scheduled cruises, that there was a real or substantial prospect, or risk, that they would not, or were not, likely to experience or enjoy travel and accommodation by cruise along the rivers covered by their routes, without substantial disruption (hereafter the ‘obligation to warn’).

Answer:

Cruise 1: In respect to group members on Cruise FRCR190513.1, Scenic, acting with due care and skill ought to have informed passengers by 16 May 2013, that water levels on the rivers remained high, and that there was a significant likelihood that this cruise would not be able to proceed smoothly without interruption. By not providing that information, the defendant did not comply with s 60 of the Australian Consumer Law.

Cruise 4: In respect to group members on Cruise STC270513.1, there was no obligation upon Scenic to warn, prior to embarkation.

Cruise 5: In respect to group members on Cruise STC270513.2, there was no obligation upon Scenic to warn, prior to embarkation.

Cruise 6: In respect to group members on Cruise STC290513.1 there was no obligation upon Scenic to warn, prior to embarkation.

Cruise 7: In respect to group members on Cruise STC290513.2, there was no obligation upon Scenic to warn, prior to embarkation.

Cruise 9: In respect to group members on Cruise EGRC080613.1, the provision of due care and skill by Scenic required the provision, by 7June 2013, of information about the real prospect of the cruise being significantly interrupted. By not providing that information, Scenic did not comply with s 60 of the Australian Consumer Law.

Cruise 11: In respect to group members on Cruise STC100613.2 the provision of due care and skill by Scenic required that, by 8 June 2013 and as an alternative to Scenic cancelling the cruise itself, passengers be provided with up to date and accurate information about the likely interruption to the cruising. By not providing that information, Scenic did not comply with s 60 of the Australian Consumer Law.

Cruise 13: In respect to group members on Cruise STC 120613.2, the application of due care and skill required Scenic to notify passengers that there was a real risk of significant interruption to the cruise and that cruising was unlikely to take place in its entirety for the whole of the itinerary. By not providing that information, Scenic did not comply with s 60 of the Australian Consumer Law.

Question 7:

In respect to each of the Cruises 1 and 4-13 (inclusive) scheduled to proceed during the relevant period along the pleaded routes, did the content of any or all of the consumer guarantees in ss 60, 61(1) or 61(2) of the Australian Consumer Law require the defendant to explain or present to the plaintiff and group members options, including opportunity for the plaintiff and group members to take alternative cruises or tours (on subsequent dates), or to offer refunds (wholly or partially) or credits on future cruises as alternative to their proceeding with embarkation upon the scheduled cruises on the scheduled embarkation dates (hereafter the ‘obligation to offer options before embarkation’)?

Answer:

Cruise 1: In respect to group members on Cruise FRCR190513.1, the application of care and skill by Scenic required that by 16 May 2013, passengers to be given a choice as to whether they would embark on the cruise or not thereby facilitating cancellation for the passengers. By not providing that choice, Scenic did not comply with s 60 of the Australian Consumer Law.

Cruise 4: In respect to group members on Cruise STC270513.1, no.

Cruise 5: In respect to group members on Cruise STC270513.2, no.

Cruise 6: In respect to group members on Cruise STC290513.1, no.

Cruise 7: In respect to group members on Cruise STC290513.2, no.

Cruise 8: In respect to group members on Cruise STC030613.1, by 2 June 2013, the only responsible action for Scenic, exercising due care and skill, was to cancel the tour, or else offer an option to cancel the cruise. By not taking that action, Scenic did not comply with s 60(1) of the Australian Consumer Law.

Cruise 9: In respect to group members on Cruise EGRC080613.1, by no later than 7 June 2013, the only reasonable course which was open to Scenic, exercising due care and skill, was to cancel the cruise, or at least offer passengers the option to do so. By failing to cancel the cruise, or at least offer that option to passengers, Scenic did not comply with s 60 of the Australian Consumer Law.

Cruise 10: In respect to group members on Cruise STC100613.1, by 8 June 2013, passengers ought to have been given the option of cancelling their cruise.

Cruise 11: In respect to group members on Cruise STC100613.2, by at least 8 June 2013, the exercise of due care or skill required either the cancellation of the cruise or else passengers ought to have been able to cancel their tour. By not cancelling the cruise, or providing passengers with the option to cancel, Scenic did not comply with s 60 of the Australian Consumer Law.

Cruise 12: In respect to group members on Cruise STC120613.1, no.

Cruise 13: In respect to group members on Cruise STC120613.2, by 11 June 2013, the exercise of due care and skill required Scenic to offer passengers the option of cancelling a cruise. By failing to provide that option, Scenic did not comply with s 60 of the Australian Consumer Law.

Question 7A:

In respect of the Cruises 2-7 inclusive, scheduled to proceed during the relevant period along the pleaded routes, did the content of any or all of the consumer guarantees in ss 60, 61(1) or 61(2) of the Australian Consumer Law require that after those cruises had embarked, the defendant to explain or present to the group members on those respective cruises the option to cancel their cruises, be offered alternative cruises or tours (on subsequent dates), or to provide refunds (wholly or partially) or credits on future cruises as alternatives to their continuing to proceed with their scheduled cruises (hereafter the ‘obligation to offer options after embarkation’)?

Answer:

Cruise 2: In respect to group members on Cruise STC200513.2, no.

Cruise 3: In respect to group members on Cruise EGFC250513.1, no.

Cruise 4: In respect to group members on Cruise STC270513.1, by 29 May 2013, Scenic, exercising due care and skill, should have provided passengers with an opportunity to cancel the further part of the tour, and make further arrangements. By failing to provide passengers with that opportunity, Scenic did not comply with s 60 of the Australian Consumer Law.

Cruise 5: In respect to group members on Cruise STC270513.2, by 3 June 2013, Scenic, exercising due care and skill, should have cancelled the tour. By failing to cancel the tour, Scenic did not comply with s 60(1) [sic] of the Australian Consumer Law.

Cruise 6: In respect to group members on Cruise STC290513.1, by 31 May 2013, Scenic, exercising due care and skill, should have provided passengers with the opportunity to make a decision as to whether or not to cancel their tour. By not providing that opportunity, Scenic did not comply with s 60 of the Australian Consumer Law.

Cruise 7: In respect to group members on Cruise STC290513.2, by 31 May 2013, Scenic, exercising due care and skill, should have provided passengers with the opportunity to make a decision as to whether or not to cancel their tour. By not providing that opportunity, Scenic did not comply with s 60 of the Australian Consumer Law.

Question 8:

Whether in respect to each of the cruises scheduled to proceed during the relevant period along the pleaded routes the defendant did not comply with any or all of the consumer guarantees in ss 60, 61(1) or 61(2) of the Australian Consumer Law by reason of the circumstances pleaded (in paragraphs 12-14 of the amended pleading), being essentially:

(a)   the defendant’s failure to unilaterally cancel or delay the cruise and/or offer the option to passengers to cancel the cruises (before or after their scheduled embarkation);

(b)    the defendant’s breach of its obligation to warn; and

(c)    the defendant’s breach of its

1. obligation to offer options before embarkation; or

2. obligation to offer options after embarkation.

Answer:

Cruise 1: In respect to group members on Cruise FRCR 190513.1, Scenic did not comply with the consumer guarantees in ss 60, 61(1) and 61(2) of the Australian Consumer Law.

Cruise 2: In respect to group members on Cruise STC 200513.2, Scenic did not comply with the consumer guarantees in ss 61(1) and 61(2) of the Australian Consumer Law.

Cruise 3: In respect to group members on Cruise EGFC 250513.1, Scenic did not comply with the consumer guarantees in ss 61(1) and 61(2) of the Australian Consumer Law.

Cruise 4: In respect to group members on Cruise STC 270513.1, Scenic did not comply with the consumer guarantees in ss 60, 61(1) and 61(2) of the Australian Consumer Law.

Cruise 5: In respect to group members on Cruise STC 270513.2, Scenic did not comply with the consumer guarantees in ss 60, 61(1) and 61(2) of the Australian Consumer Law.

Cruise 6: In respect to group members on Cruise STC 290513.1, Scenic did not comply with the consumer guarantees in ss 60, 61(1) and 61(2) of the Australian Consumer Law.

Cruise 7: In respect to group members on Cruise STC 290513.2, Scenic did not comply with the consumer guarantees in ss 60, 61(1) and 61(2) of the Australian Consumer Law.

Cruise 8: In respect to group members on Cruise STC 030613.1, Scenic did not comply with the consumer guarantees in ss 60, 61(1) and 61(2) of the Australian Consumer Law.

Cruise 9: In respect to group members on Cruise EGRC 080613.1, Scenic did not comply with the consumer guarantees in ss 60, 61(1) and 61(2) of the Australian Consumer Law.

Cruise 10: In respect to group members on Cruise STC 100613.1, Scenic did not comply with the consumer guarantee in s 60 of the Australian Consumer Law.

Cruise 11: In respect to group members on Cruise STC 100613.2, Scenic did not comply with the consumer guarantees in ss 60, 61(1) and 61(2) of the Australian Consumer Law.

Cruise 12: In respect to group members on Cruise STC 120613.1, there was no lack of compliance by Scenic with the consumer guarantees in the Australian Consumer Law.

Cruise 13: In respect to group members on Cruise STC 120613.2, Scenic did not comply with the consumer guarantee in s 60, although there was no lack of compliance with the guarantees in ss 61(1) and (2) of the Australian Consumer Law

Question 9:

Whether, to the extent that the defendant did not comply with any or all of the said consumer guarantees, such non-compliance occurred only because of causes independent of human control occurring after the defendant had supplied its services.

Answer:

No.

Question 10:

Whether it is a defence to a claim for damages for non-compliance with any or all of the said consumer guarantees if the defendant relied upon the advice(s) of its service providers, or ‘nautical partners’ referred to in its Defence.

Answer:

No.

Question 11:

Whether the defendant’s ‘service providers’ were the entity or entities responsible for damage suffered by the plaintiff and any group member.

Answer:

No.

Question 12:

What heads of damage are recoverable for a claim for compensation under s 267 of the Australian Consumer Law?

Answer:

The plaintiff had an action to recover compensation under s 267(3)(b) for any reduction in the value of the services received below the price he paid. The plaintiff also had an action under s 267(4) to recover damages for loss which was reasonably foreseeable. In his case, the loss included distress, disappointment and inconvenience.

Question 13:

Whether any or all of clauses 2.10(h), and 2.12 of the standard terms and conditions of the contract (‘standard terms’) applied to exclude the defendant’s liability?

Answer:

No.

Question 14:

Whether cl 2.13 of the standard terms applied to limit the defendant’s liability?

Answer:

No.

Question 15:

In respect to the standard terms of the contracts entered into by the plaintiff and each group member with the defendant:

15.1   was or were any of them the subject of any real or reasonable negotiation?

15.2   was it reasonably practicable for the plaintiff, or a group member, to negotiate for their alteration or rejection?

15.3   was any explanation as to their legal or practical effect given by or on behalf of the defendant?

Answer:

Not necessary to answer.

Question 16:

How are the circumstances, as alleged by the plaintiff in paragraph 17E of his pleading, in which ‘contracts’ were entered into by the plaintiff and group members to be characterised, by reference to the discretionary considerations in s 22 of the Australian Consumer Law and s 9 of the Contracts Review Act 1980?

Answer:

Not necessary to answer.

Question 17:

For the purposes of s 22 of the Australian Consumer Law and s 9 of the Contracts Review Act:

17.1   is it a relevant consideration that travel agents for the plaintiff or some group members (through whom bookings were made) were (allegedly) aware of the terms and conditions;

17.2   were the said travel agents of the plaintiff and group members ‘agents’ in law, or merely ‘brokers’ or independent contractors; and

17.2   is the said alleged awareness of the travel agents of the standard terms and conditions of the contracts to be imputed to the plaintiff and those other group members who made bookings through travel agents?

Answer:

Not necessary to answer.

Question 18:

Whether the defendant, if it is found to:

18.1 have engaged in unconscionable conduct; or

18.2   be applying to rely, or purporting to rely upon any or all of cll 2.6(d), 2.10 or 2.13 of the standard terms

should be prevented from being able to rely upon those provisions by orders made under ss 237 and/or 243 of the Australian Consumer Law.

Answer:

Not necessary to answer.

Question 19:

Did each of cll 2.6(d) and 2.10 of the standard terms have the effect pleaded in paragraph 17J?

Answer:

Not necessary to answer.

Question 20:

In respect to each of cll 2.6(d) and 2.10 of the standard terms:

20.1   did either or both cause a significant imbalance in the rights or obligations arising under each contract?

20.2   was either or both reasonably necessary to protect the defendant’s legitimate interests?

20.3   would either of them cause detriment to the plaintiff or group members if applied or relied upon by the defendant?

Answer:

Not necessary to answer

Question 21:

All issues necessary for the determination of the entirety of the plaintiff’s claim.

Answer:

The plaintiff is entitled to judgment against the defendant in accordance with Moore (No.2).

Question 22:

With respect to issues 1 to 20 inclusive, are the answers common to all group members, some group members, and if so which ones, or else no group members?

Answer:

Save to the extent indicated above, all of the answers to the questions are common to the claims of the group members, who resided in Australia and Vanuatu, and who contracted with the defendant. A determination has not yet been made as to whether all of the answers to the questions are common to other passengers on the cruises who resided outside Australia and Vanuatu.

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Endnotes

“28   Guarantee as to reasonable care and skill

   Subject to section 41, where services are supplied to a consumer there is a guarantee that the service will be carried out with reasonable care and skill.

29 Guarantee as to fitness for particular purpose

   Subject to section 41, where services are supplied to a consumer there is a guarantee that the service, and any product resulting from the service, will be—

(a)   reasonably fit for any particular purpose; and

(b)   of such a nature and quality that it can reasonably be expected to achieve any particular result,—

   that the consumer makes known to the supplier, before or at the time of the making of the contract for the supply of the service, as the particular purpose for which the service is required or the result that the consumer desires to achieve, as the case may be, except where the circumstances show that—

(c)   the consumer does not rely on the supplier’s skill or judgment; or

(d)   it is unreasonable for the consumer to rely on the supplier’s skill or judgment.”

Amendments

25 October 2018 - [23] - 2013 amended to 2017

Typographical amendments to [372(ii)], [387], [406]

Fn 117 - Gavin Duffy CJ amended to Gavan Duffy CJ

Fn 141 - Marcovic J amended to Markovic J

14 November 2018 - [329] - delete "took", insert "did not take"

[392(ii)], [395] and [397(iv)] - insert Cruises 2 and 3

[396(iii) and (iv)] - insert section "s 267(3)(b)"

[122] - insert s 61(3)

Decision last updated: 14 November 2018