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Scenic Tours Pty Ltd v Moore

Scenic Tours Pty Ltd v Moore

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Case Copied 24 October 2018 80 min read

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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)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] NSWCA 238
Decision Date: 24 October 2018

CaseChat Overview and Summary

The case of *Scenic Tours Pty Ltd v Moore* involved a representative proceeding brought by Mr Moore on behalf of passengers who had purchased European river cruises from Scenic Tours. A number of these cruises were significantly disrupted due to high water levels. Mr Moore sought compensation for loss of value and damages for disappointment and distress for himself and the other passengers. The primary legal dispute concerned whether the proceedings had been satisfactorily constituted to identify common questions of law or fact, and whether the passengers were entitled to compensation and damages under the Australian Consumer Law (ACL) and the *Civil Liability Act 2002* (NSW).

The Court of Appeal was required to determine several key legal issues. These included whether the "services" provided by Scenic Tours for the purposes of the Consumer Guarantees under the ACL encompassed the provision of pre-embarkation information regarding river conditions. The court also had to consider whether the services provided were fit for the particular purpose for which they were acquired, and whether they were of a nature and quality that could reasonably be expected to achieve the desired result, as stipulated by sections 61(1) and 61(2) of the ACL. Furthermore, the court examined the application of section 16 of the *Civil Liability Act 2002* (NSW) to claims for disappointment and distress, and the effect of section 275 of the ACL in potentially applying the *Civil Liability Act* as a surrogate federal law to claims arising from conduct outside Australia.

The Court of Appeal allowed the appeal in part. It found that the passengers were precluded from claiming damages for disappointment and distress by section 16 of the *Civil Liability Act 2002* (NSW), and therefore dismissed these claims. The court also set aside the primary judge's orders regarding these damages. However, it directed that the primary judge should determine Mr Moore's claim for compensation for the reduction in the value of the services pursuant to section 267(3)(b) of the ACL in conformity with the reasons provided. The court also made directions regarding the formulation of common questions and answers for the further hearing of the matter, particularly concerning the claims of Group Members for compensation and damages.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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)…