Scenic Tours Pty Ltd v Moore

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.