Kelly v Scenic Tours Pty Ltd

1. [1]

   On 17 August 2022, Darran Kelly, the plaintiff, commenced proceedings, pursuant to pt 10 of the Civil Procedure Act 2005 (NSW), against Scenic Tours Pty Ltd (“Scenic”).

2. [2]

   In the proceedings, the plaintiff claims, on behalf of himself and group members, damages arising out of Scenic’s alleged failure to comply with the consumer guarantees under sch 2 of the Competition and Consumer Act 2010 (Cth) (the “ACL”), on 21 identified cruise trips (“the cruises”) which were scheduled to travel along the river canal waterway systems which connect Amsterdam to Budapest. The cruises took place between 18 June 2018 and 21 November 2018.

3. [3]

   In Moore v Scenic Tours Pty Ltd (No.2) [2017] NSWSC 733 (“Moore (No.2)”), the river cruises were disrupted by flooding of the river and canal system. The principal difference is that, in these proceedings, the cruises were disrupted because of extensive drought and the very low water levels of the same river and canal system.

4. [4]

   There are, of course, differences of detail between the two claims.

5. [5]

   An issue has arisen with respect to the identification and specification of the common questions which the parties wish to have determined at the first hearing of these proceedings. These common questions would ordinarily be specified well in advance of a hearing, although, ultimately, whether they prove to be common is a matter which can only be decided after the relevant evidence is taken: see Merck Sharpe & Dohme (Australia) Pty Ltd v Peterson [2009] FCAFC 26; (2009) 355 ALR 20 (“Merck”).

6. [6]

   The parties are agreed, substantially, on all of the questions which might be regarded as common. They are unable to agree on a series of questions which centre upon the consumer guarantees set out in s 61 of the ACL. This judgment deals with that contentious issue.

7. [7]

   A minor disagreement between the wording of two other questions (being Questions 1 and 3) can, after discussions during the hearing, be left to the parties to resolve.

Relevant Legislation

1. [8]

   Section 61 of the ACL is in the following form:

Legal Principles

1. [9]

   In s 61(1) of the ACL, the key phrase is “particular purpose”. That phrase has existed in earlier versions of legislation dealing with the sale of goods, both in the United Kingdom, and within the various Australian jurisdictions. Generally speaking, the phrase has been construed broadly in provisions in the earlier legislation.

2. [10]

   There is no reason to think that the particular purpose, within the meaning of s 61(1), is the sole or only purpose for which anyone would ordinarily acquire the services. Putting it differently, a particular purpose within the legislation need not be a purpose that is special or individual to a consumer: see David Jones Ltd v Willis [1934] HCA 47; (1934) 52 CLR 110 at 121 (Starke J), and 128 (McTiernan J); Grant v Australian Knitting Mills Ltd [1935] UKPCHCA 1; (1935) 54 CLR 49 at 60 (Lord Wright); Scenic Tours Pty Ltd v Moore [2018] NSWCA 238; (2018) 361 ALR 456 at [217]-[226] (Sackville AJA with whom Payne JA and Barrett AJA agreed); see also Wade v J Daniels & Associates Pty Ltd [2020] FCA 1708 at [331] (O’Bryan J).

3. [11]

   In Moore (No.2), at [390], I found that:

4. [12]

   That finding, which was subsequently applied to each group members’ claim, was not overturned on appeal.

Proposed Common Question

1. [13]

   The plaintiff proposes, and Scenic opposes, the following question being identified as a common question to be determined at the initial hearing of the proceedings:

2. [14]

   Question 16 posed an identical question, with respect to international passengers – that is, people who did not book their cruise through the Australian company operated as part of the Scenic group but, rather, booked through another entity or company within that group.

3. [15]

   The dispute about Questions 14, 15, 17 and 18, which are not agreed, will be determined by the disposition of the argument about Questions 13 and 16. They are not separately concluded here.

Submissions

1. [16]

   Senior Counsel for Scenic submitted that, as posed, these questions were inappropriate for determination as a common question.

2. [17]

   Scenic submitted that, because the purpose in s 61(1) of the ACL was a purpose held subjectively by each consumer, the enquiry into whether, first, there was such a purpose held by a consumer, and secondly, whether such purpose was communicated impliedly, or directly, by the consumer to Scenic, could not, by definition, be a common question. Whilst Scenic accepted what had been said by Sackville AJA in Moore at [226], that a consumer may have the “particular purpose” of acquiring services for the only purpose for which the services were suitable, the fact remained that the enquiry as to a consumer’s purpose required an assessment of what the specific consumer wanted the services to achieve, and whether they communicated that purpose to the supplier.

3. [18]

   Scenic submitted that it could be anticipated that the evidence about the particular purpose would undoubtedly vary regarding each passenger’s decision to book the cruise, their purpose and the result they wished to achieve, and whether that purpose and result were communicated to Scenic.

4. [19]

   Scenic sought to identify the fact that, international passengers (who were not said to have booked directly with Scenic) would need to establish how they made known to Scenic any particular purpose or desired result.

5. [20]

   Accordingly, they submitted that, even if the Court were to find that the plaintiff impliedly made known a particular purpose for which Scenic’s services were being acquired, that finding could not be extrapolated to each of the group members.

6. [21]

   In oral submissions, Scenic confirmed that their approach, which they contended was legally correct, involved the proposition that, as a matter of law, the construction of the ACL did not permit a determination of purpose or result, by implication, solely from the facts of and surrounding the commercial transaction in question.

7. [22]

   Senior counsel for the plaintiff and group members submitted that the question was capable of constituting a common question because questions were capable of being answered on a common basis:

8. [23]

   Senior counsel for the plaintiff and group members submitted, by reference to the judgment of Moore in the Court of Appeal, that posing the disputed questions was entirely consistent with the approach taken in Moore and is clearly an available approach.

Discernment

1. [24]

   In Merck Sharpe & Dohme, the Full Court of the Federal Court (Moore Sundberg and Tracey JJ) said, at [8]:

2. [25]

   Further, at [9], their Honours said:

3. [26]

   The determination for what is now commonly referred to as Merck orders, is not a determination at an interlocutory hearing, or on an interlocutory basis, of any question of substance which will arise, or may arise, at the first hearing, or “trial”.

4. [27]

   Rather, it is a process intended to provide clarity as to what issues are to be raised and to enable parties to be prepared, by evidence and submission, to deal with those issues and, where necessary, for rulings on evidence to be given. It is a structure driven by the need for clarity and procedural fairness.

5. [28]

   It is clear that the plaintiff and group members seek to prove that the basal facts giving rise to the provision of the services, namely, the making of a booking, the acceptance of the booking, and the payment for the booking, were sufficient in themselves, and without more, to convey implicitly to Scenic the particular purpose for which the services were acquired. Shortly put, to enjoy the luxury cruise which Scenic offered and which services were to be provided.

6. [29]

   That approach is to be found in paragraph 9 of the ASOC, where the purpose was described as:

7. [30]

   The particulars provided to that pleading then point to the nature of the plaintiff and group members as consumers on the one hand, and Scenic as the supplier of the services on the other, as well as the promotion of the itinerary and standards to be supplied by Scenic, the booking by the plaintiff and group members of the services to be supplied, or a payment of the deposit and monies to secure the supply of services.

8. [31]

   Such a definition of the particular purpose would not be inconsistent with the approach taken in Grant, or in the other authorities referred to at [10] above.

9. [32]

   However, there is merit in the argument by Scenic that such a purpose may vary in particular cases. That may be so. A consumer who was an expert travel writer may have joined the cruise for an entirely different purpose, for example, to evaluate and report on the services provided by comparison with other, similar, cruising services. But that is a matter for a determination of an issue of substance. However, this is not an occasion for this Court to determine the substantive issue.

10. [33]

    The specification of common questions, at this stage of the proceedings, does not need a determination that the question will be answered either favourably to the plaintiff and group members, or favourably to a defendant, here, Scenic. By way of an example, an answer in the negative to the disputed common question would be favourable to Scenic, and would be applicable to all group members, necessitating each group member to identify a specific purpose which was individual to them in order to prove a component part of the consumer guarantee claim.

11. [34]

    There is nothing put before the Court in the argument by either party which suggests that it would be appropriate for this Court to conclude now that, as a matter of law, it is not open to a plaintiff to seek to persuade a Court that a purpose can arise and be impliedly made known to a defendant, a supplier of services, which depends only on the transactional documents by which the services are to be supplied.

12. [35]

    The formulation of common questions always leaves open to the trial Judge to determine a question by answering that it is not common.

13. [36]

    Specifying this question, which I accept is probably largely, if not entirely, a matter of law, will not add to the length of the proceedings, will not prejudice any party in a way which cannot be remedied, and if answered inappropriately, can properly be the subject of an application for leave to appeal.

14. [37]

    In those circumstances, particularly having regard to the obligations of the Court under the Civil Procedure Act 2005 (NSW), in my view ,it is appropriate for the Court to specify that the disputed questions be included as common questions and, accordingly, be fixed for hearing together with the whole of the plaintiff’s and the sample members’ claims.

15. [38]

    It is appropriate, in light of that determination, for the parties to formulate, in one document, the questions that are to be posed and to submit them with appropriate Short Minutes of Order, to the Court, within seven days.

Orders

1. [39]

   I make the following orders:

   1. (1)

      Order that the parties submit either an agreed set of Short Minutes of Order, or else their separate versions of the appropriate Short Minutes, including the common questions, within seven days of the date of delivery of this judgment.

   2. (2)

      Order that costs be costs in the cause.