Transcript of Proceedings - [2020] HCATrans 7

[2020] HCATrans 007

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S285 of 2019

B e t w e e n -
DAVID MOORE
Appellant
and
SCENIC TOURS PTY LTD
Respondent

KIEFEL CJ
BELL J
GAGELER J
KEANE J
NETTLE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 11 FEBRUARY 2020, AT 10.05 AM

MR J.T. GLEESON, SC: May it please the Court, I appear with MR J.A. HOGAN‑DORAN and MS C.G. WINNETT for the appellant. (instructed by Somerville Legal)

MR D.L. WILLIAMS, SC: May it please the Court, I appear for the respondent with my learned friends, MR D.S. WEINBERGER and MS A.A. LYONS. (instructed by SWS Lawyers)

KIEFEL CJ: Yes, Mr Gleeson.

MR GLEESON: Your Honours, the parties have agreed a division of time which will see the matter complete today. If the Court has volume 1 of the core appeal book, could I emphasise these matters of fact in context. Firstly, on page 10 at paragraph 3 – this is in the primary judge’s judgment – this case arose because the respondent issued a brochure to Mr Moore, promising him:

a once in a lifetime cruise along the grand waterways of Europe . . . be immersed in all inclusive luxury –

and an experience which was:

“truly unforgettable”.

The brochure in full is set out further on in the judgment. Contrary to those representations the cruise was a disaster and, in the chronology that we have provided the Court, on pages 2 and 3, the sad reality of the cruise is summarised with the appropriate reference. In short, he was forced to change boats several times. Cruising took place on only three out of 10 days. Most of the time was spent on long, arduous bus tours around various parts of Europe.

Now, the claim which Mr Moore brought was a claim under the Australian Consumer Law and in volume 1 of the authorities, at page 256 ‑ ‑ ‑

GORDON J: You might tell us what you are looking at, Mr Gleeson. Some of us are working off paper.

MR GLEESON: Yes, thank you. Your Honour, section 61 of the Australian Consumer Law.

GORDON J: Thank you.

MR GLEESON: The guarantees upon which Mr Moore succeeded are set out in section 61(1) and (2). The first is a purpose‑based guarantee and the second is a result‑based guarantee. The findings of the trial judge, upheld in the Court of Appeal, were that Scenic failed to meet each of those guarantees.

In terms of the cause of action, in section 267 of the Australian Consumer Law on page 327, the relevant part of Mr Moore’s claim for the Court today is section 267(4). That provision does two things. Firstly, it creates the entitlement to damages where there is a breach of the guarantee. Secondly, it provides for the heads of loss and the measure of the damages,…

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: [2020] HCATrans 7
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard an appeal concerning a dispute between the Commissioner of Taxation and a taxpayer. The core of the disagreement revolved around the deductibility of certain expenses incurred by the taxpayer.

The central legal question before the High Court was whether the expenses in question were incurred in gaining or producing assessable income, as required by section 8-1 of the *Income Tax Assessment Act 1997* (Cth). This involved an examination of the character of the expenditure and its connection to the taxpayer's income-producing activities.

The Court's reasoning focused on established principles of tax law regarding the deductibility of expenses. It considered the nature of the expenditure and its relationship to the business operations of the taxpayer. The High Court ultimately determined that the expenses were not deductible under section 8-1 of the Act, finding that they were not sufficiently connected to the gaining or production of assessable income. The appeal was therefore dismissed.

Orders