Scenic Tours Pty Ltd v Moore

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

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

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

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