Kelly v Scenic Tours Pty Ltd

1. [1]

   On 17 August 2022, the plaintiff, Darren Kelly, commenced representative proceedings against the defendant Scenic Tours Pty Ltd (“Scenic”), pursuant to Part 10 of the Civil Procedure Act 2005 (“CPA”).

2. [2]

   The Statement of Claim claims damages for the plaintiff and group members arising out of Scenic’s alleged failure to comply with the consumer guarantees under the Australian Consumer Law (“ACL”) on 21 identified cruise trips (“the Cruises”) along the river and canal waterway systems which connect Amsterdam to Budapest. The Cruises took place between 18 June 2018 and 21 November 2018.

3. [3]

   These proceedings have distinct similarities to Moore v Scenic Tours Pty Ltd, a matter in which there are many published judgments of this Court, the Court of Appeal and one of the High Court of Australia. I note that the solicitors and counsel for the plaintiff in these proceedings are those who acted and appeared for Mr Moore. The counsel for Scenic are the same as those who appeared for Scenic in the Moore proceedings.

Notice of Motion

1. [4]

   On 1 December 2022, the defendant filed a Notice of Motion seeking various forms of relief. The relevant orders sought were:

2. [5]

   Prior to the hearing of the Motion, the plaintiff, on 10 March 2023, filed and served an Amended Statement of Claim (“ASC”). Appropriately, the parties agreed that the Motion should be determined by reference to the ASC rather than the original Statement of Claim.

3. [6]

   Counsel for Scenic informed the Court at the commencement of the hearing that Order 3 of the Motion seeking relief pursuant to s 166 of the CPA was no longer being pressed. However, Scenic did press the claims made in Orders 1 and 2 of the Motion.

4. [7]

   This judgment deals with the defendant’s Motion.

Relevant Legislation

1. [8]

   As can be observed from the declaration and orders sought in the Notice of Motion set out at [5] above, various provisions of the CPA are relevant.

2. [9]

   Section 157 regulates the commencement of proceedings under Part 10 of the CPA. It is in the following form:

3. [10]

   The CPA provides for a number of mandatory inclusions in a pleading. Section 161 of the CPA is in the following form:

4. [11]

   Although relief is no longer sought pursuant to Section 166 of the CPA, the provision has continuing relevance as it provides for circumstances in which a Court may order discontinuance of representative proceedings. It is in the following form:

5. [12]

   Section 168 of the CPA is also relevant. It is in the following form:

6. [13]

   Section 177 of the CPA provides for the powers of the Court and allows the Court to determine a question of law, determine a question of fact, make a declaration of liability or make an award of damages for an entire group in an aggregate sum, including to sub-group members or to individual members, being damages which consist of specified amounts or amounts worked out in such manner as the Court sees fit.

7. [14]

   Section 179 of the CPA is of importance, and provides:

Amended Statement of Claim

1. [15]

   As earlier noted, the Notice of Motion sought orders relating to the strikeout of certain parts of the plaintiff’s original Statement of Claim, but the defendant’s Motion was maintained, with slight variations, with respect to the ASC.

2. [16]

   The group of people on whose behalf the plaintiff commenced the representative proceedings were described in the ASC in the following way:

3. [17]

   It can be seen that, leaving aside the minor exception for some legal practitioners and Judges, there are two qualifying criteria for membership of the group, namely:

4. [18]

   Extensive particulars and definitions of the group members followed which provide further details of the qualifying criteria, but do not change them. They included:

5. [19]

   The services to which reference is made in paragraph 2(b) of the definition of Group Members were defined in paragraph 5A of the ASC in the following form:

6. [20]

   In the particulars regarding the Scenic Brochures, the ASC identifies a brochure described as the “Australian Scenic Brochure”, one described as the “UK Scenic Brochure”, and one described as the “Canadian Scenic Brochure”. Similarly for the Emerald Brochures, one is described as the “Australian Emerald Brochure”, one is described as the “UK Emerald Brochure” and one is described as the “Canadian Emerald Brochure”. Each Brochure is clearly identified by reference to where they can be located.

7. [21]

   Paragraph 5B of the ASC extensively sets out which Services were to be provided. The Services are initially summarised in this way:

8. [22]

   Those on-board and on-shore services are then comprehensively particularised.

Relevant Facts

1. [23]

   Although this Motion dealt with interlocutory orders concerning the alleged ambiguity in parts of the ASC, and an order that the proceedings were not properly commenced, the parties put before the Court over 1,300 pages of evidence. None of this material was objected to on the grounds of relevance. There was no contest about any of the material and, accordingly, it has not been necessary to make any determination of contested fact.

2. [24]

   The following summary of relevant facts is taken from that uncontested material.

3. [25]

   In determining Order 2 of the Notice of Motion, which sought a declaration that the proceedings were not properly commenced under Part 10, the evidence adduced is not strictly relevant. That is because the issue is to be determined by reference to the pleading, and whether, having regard to the material facts set out in the pleadings, ss 157(1)(b) and (c) of the CPA are satisfied: Nguyen v Rickhuss [2023] NSWCA 249 at [27]. However, the parties’ approach to the Motion did not limit their submissions in that way. The factual evidence was regarded as being relevant to all of the relief sought. It is convenient for the Court to adopt that approach.

4. [26]

   Prior to the commencement of these proceedings in 2022, proceedings by way of preliminary discovery pursuant to Part 5 of the Uniform Civil Procedure Rules 2005 (“UCPR”) had taken place. Some of the evidence which was before the Court on the preliminary discovery application was referred to in these proceedings. No objection was taken to that course.

5. [27]

   By letter dated 10 October 2022, the then solicitors for Scenic (SWS Lawyers) provided information to the plaintiff as to the number of guests and their country of origin for all of the Cruises. They said:

6. [28]

   The parties were content to proceed on the basis that, of the total possible members of the group (being all of the passengers on the Cruises) of 3,042, 1,765 would be categorised as “International passengers” and 1,277 would be categorised as “Australian passengers”.

7. [29]

   In the preliminary discovery proceedings, an affidavit dated 15 May 2019 was sworn by Ms Donna Willis, who described herself as the Guest and Corporate Affairs Manager of Scenic. She gave her address as the corporate address of Scenic, and informed the Court that she was authorised to affirm the affidavit on behalf of Scenic. Ms Willis’ affidavit was directed to describing the task involved in responding to the various categories of documents sought by the plaintiff in those proceedings. She said that she had access, as part of her role as the Guest and Corporate Affairs Manager:

8. [30]

   It is relevant to note that the Cruises referred to, and the period of time referred to, coincide with the Cruises pleaded in these representative proceedings. Ms Willis said that she had access to a master list of the defendant’s 2018 European River Cruises which was stored and located on “the defendant’s internal European drive”. From that master list, which is a spreadsheet, Ms Willis could identify each individual relevant cruise “that operated within the period”. She was also able through that system to collate a passenger manifest for each individual cruise. That manifest would include all passengers who travelled on the cruise. No differentiation was made between whether the passengers were international or Australian.

9. [31]

   Within the defendant’s intranet system, Ms Willis could identify and open the guest manifest for each cruise identified in the relevant period. That guest manifest lists the names, addresses and other contact details for each passenger on each of the cruises.

10. [32]

    Ms Willis could also obtain from the computer system a copy of all notes made by a Cruise Director for each cruise. The nature and content of such notes was referred to in [484]-[684] of Moore v Scenic Tours Pty Ltd (No.2) [2017] NSWSC 733 (“Moore (No.2)”). They provide a comprehensive account on a daily basis of events on each cruise, and any issues for any of the passengers.

11. [33]

    Ms Willis identified the existence of an internal email distribution list by which, and from which, emails are sent to a number of recipients. This list, Ms Willis affirmed:

12. [34]

    She was also a recipient of any emails sent to that list.

13. [35]

    During the relevant period of about 214 days during which the Cruises were taking place, Ms Willis said that she received about 1,200 emails which were also distributed to persons on that list. Ms Willis, in the course of her evidence, identified 14 key personnel (in addition to herself) who were likely to have received emails on that list. Those personnel included individuals described as “General Manager, Operations Europe; Operations Manager; Operations Supervisor; Cruise Operations; and Chief Operations Officer”.

14. [36]

    Further, in her affidavit, in dealing with a request for discovery of documents described as “Booking Advices”, Ms Willis said, the following:

15. [37]

    Ms Willis said she estimates there were likely to be about 25,000 relevant booking numbers, which is a number allocated to a booking advice and any revision or alteration for that advice. She then said this:

16. [38]

    Ms Willis made no suggestion that any different system applied to Australian or International guests. She made no suggestion that there was a different system applying to any company or entity falling within the broader Scenic group of companies.

17. [39]

    In dealing with questions of compensation, Ms Willis in her affidavit said:

18. [40]

    When dealing with a further category of discovery which sought the standard form terms and conditions forming part of any contract Scenic entered into with the passengers, Ms Willis said:

19. [41]

    The solicitor for the defendant, Ms Susan Moran, in an affidavit of 1 December 2022, provided information to the Court which she had obtained from Ms Fittler, the Executive General Manager of Scenic. That information included that there was an Australian brochure published by each of Scenic and Evergreen. These two brochures were different. Further, Ms Fittler informed Ms Moran that in Canada, each of Scenic and Emerald published separate brochures. They also did so in the United Kingdom. Copies of those brochures were exhibited to the affidavit of Ms Moran. A separate Scenic brochure was published in the United States of America.

20. [42]

    The Scenic Canada brochure only makes a minor reference to the existence of ST Touring Canada Ltd t/as Scenic. But it does so on the final page of the brochure where, under the heading “Scenic Offices”, is the description that the “Head Office” of Scenic is at Newcastle. A different website is given for each Scenic’s offices in Australia, Canada, USA and UK. However, no other difference is to be observed relating to the cruises, the ships on the cruises, the services to be provided and what is described on page 14 of the brochure as the “Scenic Experience”, namely:

21. [43]

    The UK brochure is also included. It includes this statement:

22. [44]

    I note that the final page of the UK Brochure has a “get up” similar to that in the Canadian Brochure, but only names the Australian company, Scenic Tours Pty Ltd. It makes no reference to any UK company.

23. [45]

    Although it has not been possible to read and closely compare each of the Australian brochures, and those for Canada and the UK, the following observations are apt.

24. [46]

    Each brochure has an identical front page with the exception of the bottom lefthand corner which provides in small font the website for the respective countries. Each brochure has the same title, namely “The Hidden Wonders of Europe River Cruising”. The next two pages which describe the nature, the “perks and privileges” and “taking the Scenic route” are, in all respects, identical with the exception that in the UK brochure there is an addition about the flexibility of including return flights or taking up a “no fly” option. There are undoubtedly differences between the brochures, such as where the brochures make reference to currency. In those circumstances, the currency is that of the relevant country.

25. [47]

    But, what is clear is that the cruises offered are the same and the ships offered are the same. There is no suggestion in any of these brochures that services to passengers will be different depending upon their country of origin.

26. [48]

    Counsel for Scenic, in oral submissions, accepted that there was no difference of substance between the three Scenic Brochures (Australian, Canadian or UK) which he had identified in respect of the experience or Services which were being promoted in each of the Scenic Brochures.

27. [49]

    Curiously, in the Australian and Canadian brochures, in the extremely small font containing the “Terms and Conditions”, the contracting party is identified as “Scenic Pty Ltd”. In the UK brochure, the contracting party is identified as “Scenic Tours (UK) Ltd t/as Scenic”. No explanation is apparent from the evidence as to this fact, nor who or what is Scenic Pty Ltd.

28. [50]

    According to the correspondence exchanged between the parties, which is in evidence on the Motion, the following companies appear to be identified as being potentially relevant for International passengers, in addition to the named defendant. They are:

29. [51]

    Any trading names used by these companies are not separately identified. There is no suggestion that any name other than Scenic is used throughout the brochure. The material contained in the evidence also makes plain the defendant’s assertion as to the underlying arrangements for International passengers. It is apparent that it will be contended, as is made clear in a letter from the lawyers for the defendant dated 10 October 2022, that the International passengers entered into contracts with entities other than the defendant for the provision of the river cruise services. Apparently, it will be contended that such passengers were provided with a copy of a passenger ticket terms and condition document which contained terms and conditions that applied to the contract of carriage between the passenger and “… the operator of the relevant cruise vessel”. It is asserted by the defendant’s solicitor that the defendant was not the owner or operator of any of the vessels for the Cruises and that it was not a party to the contract of carriage for any of them.

30. [52]

    That letter of 10 October 2022 contains these statements:

31. [53]

    I note that nowhere in the evidence on this Motion is to be found any diagram explaining the defendant’s organisation, any ownership, or any relationship with respect to the Cruises as between the defendant and other companies bearing the name “Scenic” and which operate in various locations around the world. Nor is there any document or explanation as to the way in which the computerised system to which Ms Willis had extensive access relates to the defendant, and entirely separately to any (and if so, which) other companies, the defendant relies upon as being involved in the booking of river cruises for, and the operation of river cruises for, International guests. This omission is particularly notable having regard to the content of the evidence of Mrs Willis, and the promotional brochures described above. There is no evidence at all of any senior officer of the defendant which describes in adequate detail any of these matters. No attempt has been made for the purpose of this Motion to prove the assertion in the letter of 10 October 2022.

Submissions of Scenic

1. [54]

   Scenic submitted that pursuant to r 14.28(1) of the UCPR, the ASC was defective because it was embarrassing within the meaning of that rule as it was ambiguous or “so imprecise” as to deprive Scenic of “… proper notice of the real substance of the claim or defence”: Szanto v Bainton [2011] NSWSC 985 at [107].

2. [55]

   Scenic noted that the requirements set out in s 161(1) of the CPA with respect to any statement of claim were not fulfilled because of the imprecision and ambiguity of the ASC. It noted that one of the relevant functions of s 161 of the CPA was to enable the Court to determine, upon the commencement of the proceedings, “…whether or not it has been properly constituted as a class action”: Gill v Ethicon Sàrl (No.3) [2019] FCA 587 at [7].

3. [56]

   In substance, what Scenic submitted was that the ASC failed to comply with ss 157 and 161 of the CPA with the consequence that the plaintiff did not have standing to commence the proceedings except in respect of those group members who participated in the cruise upon which the plaintiff was a passenger. Even then, Scenic submitted that there was no room for any inclusion of International passengers who were on that Cruise.

4. [57]

   Scenic first addressed the definition of group member in the proceedings, which it submitted was wholly inadequate. In so submitting, it concentrated on a number of the particulars to the definition of the group members. It is convenient to repeat one particular of the ASC – paragraph 2(c)(iv) – which was in the following terms:

5. [58]

   Scenic noted that the particular needed to be read with the following particular, namely paragraph 2(d) which is set out again here:

6. [59]

   Scenic submitted that the use of the phrase “operated by Scenic” in paragraph 2(c)(iv), which is repeated in the introduction to paragraph 2(d), was ambiguous because it could mean a range of factual conduct such as, at one end of the spectrum – simply the provision of a boat upon which services were provided by others; ranging through to the complete provision of the boat and all services upon it.

7. [60]

   Scenic submitted that that ambiguity was compounded by the generality of the particulars in paragraph 2(d) which included these phrases:

8. [61]

   Scenic submitted that these phrases were such that a potential group member would not be able to decide whether or not they fell within the group. Further, by reason of their ambiguity and vagueness, it would not be possible for Scenic to understand whether the content of the consumer guarantees relied upon were applicable to it, or to the other entities or to all providers of any service on any of the cruises. It followed, Scenic submitted, that it was not possible to determine that there were any common issues of fact or law for all of the Cruises except for the cruise upon which the plaintiff himself was a passenger.

9. [62]

   In particular, Scenic noted that the group definition was not limited to passengers who booked with Scenic in Australia or through a travel agent who dealt with Scenic in Australia, but rather, as was apparent, included International passengers who booked in the United Kingdom, Canada and possibly other places. These International passengers, Scenic submitted, could not determine whether the content of the consumer guarantees were applicable to them without first knowing or understanding what the facts and circumstances were surrounding the operation of the Cruises by Scenic, including which “entity” actually operated the Cruise.

10. [63]

    Scenic emphasised the particular importance of clarity in the pleading when over half of the passengers on the Cruises were International passengers. That is to say, their bookings were made with companies outside Australia, with the consequence that, on Scenic’s submission, the ACL and its contents had no application to a contract entered into from outside Australia for people who lived outside Australia and who did not contract with the named defendant, Scenic Tours Pty Ltd.

11. [64]

    Scenic submitted that there could not be a common question of either fact or law within the meaning of the CPA as between International guests and those who booked domestically. It also submitted that a question would arise as to whether, assuming proper representatives of International guests and Australian passengers were identified, and all of the relevant Scenic-related corporations were joined, it was not obvious from the pleadings that the ACL would apply to International guests, and, if it did, how that could be so.

12. [65]

    Scenic further submitted that the definition of “Services” in the ASC demonstrated that there was no possibility of any common question of fact or law arising of a kind which would justify the commencement of representative proceedings.

13. [66]

    Scenic submitted that in paragraph 2(b) of the ASC, an essential feature of the definition of the class is that a group member is a person who suffered loss or damage because the “Services” were in breach of the consumer guarantees in the ACL. Scenic noted that the Services were defined in paragraph 5A in the ASC as being a luxury European cruise holiday described in the various Scenic or Emerald Brochures, which were particularised (see [19] and [20] above).

14. [67]

    In light of these pleadings, Scenic submitted that the plaintiff in substance and effect pleads a single rolled-up definition of “Services” encompassed by six brochures, published in three countries, by three separate legal entities. Scenic submitted that the only brochure which could be relevant to the plaintiff’s case, and therefore which could give rise to a substantial common question of fact or law, emerges from the Australian Brochure alone. Accordingly, Scenic submitted, there is no common question that could “conceivably arise” except in respect of the plaintiff’s cruise, and only then in respect of passengers who relied upon the Australian Brochure.

15. [68]

    In discussion, counsel for Scenic accepted that these latter submissions could be encapsulated by saying that it was Scenic’s position, in the context of the ASC, that no two cruises could give rise to a substantial question of fact or law.

16. [69]

    Counsel for Scenic dealt with the group member definition by submitting that as a matter of principle, any such definition needed to add “uninformed person” to be sufficient to allow a person to determine whether they were a group member or not. Scenic submitted that having regard to the use of the phrase “… operating a cruise …” (regarding the defendant), a person could not determine from such a vague, ambiguous and unintelligible description whether they were a group member or not.

17. [70]

    For those additional reasons, counsel for Scenic submitted that the definition of group members did not satisfy the provisions of ss 157 and 161 of the CPA.

Submissions of the Plaintiff

1. [71]

   Counsel for the plaintiff submitted that there is no room for ambiguity or misunderstanding with respect to potential group members. Counsel submitted that from the pleading, it is obvious that the plaintiff’s case is that Scenic was the operator of all of the Cruises which are described in Annexure A to the ASC. He noted that it was not the plaintiff’s case that Scenic only operated some, but not all, of the Cruises. He further submitted, by reference to the particular in paragraph 2(e), which excludes from group membership only those who did not in fact travel on one of the Cruises, that it was obvious that any potential group member would need only to make a determination that they were part of the group by satisfying themselves that they were a passenger who did actually travel on one of the Cruises.

2. [72]

   Counsel for the plaintiff also drew attention, in submitting that there was no ambiguity or lack of precision in the pleading, to the fact that the structure of the Australian Brochures, the Canadian Brochures and the UK Brochures did not, with the exception of dates of specific itineraries, differentiate in the description of the Services which were to be provided to passengers on the Cruises and the experiences which they were to enjoy. Counsel drew attention to the fact that those descriptions applied to all of the Cruises contained in the Brochure and that there was nothing to suggest that any individual cruise was different from another in that respect.

3. [73]

   This submission included that the clear implication was that Scenic also made no differentiation between International passengers and Australian passengers insofar as the evidence in the preliminary discovery proceedings which described and promoted the experience and services, and insofar as the services were actually provided. It is the plaintiff’s case that the description of the experience and services promoted in the various Brochures were identical regardless of the terms of any contract entered into, and it is the plaintiff’s case that the services provided on each Cruise were provided identically to each passenger on that Cruise.

4. [74]

   Insofar as the defendant submitted that the phrase “operated the Cruise” was capable of ambiguity and was unintelligible, the plaintiff submitted that such a submission should not be upheld having regard to the terms of the evidence given in the preliminary discovery proceedings to which I have earlier adverted, and the content of correspondence to various group members who were complaining of their experience on one or more of the Cruises, which included extensive reference to the defendant’s “operations team” involved in the management of the Cruises.

5. [75]

   This reference, it was submitted, mirrors what Ms Willis says in her affidavit about the existence of the “email group” involving various individuals – all of whom were concerned with the operation of all of the Cruises.

6. [76]

   Finally, counsel for the plaintiff pointed to the Court’s findings at [16]-[23] in Moore (No.2) about the internal roles within Scenic and other entities within the broader Scenic Group operating “jointly” and being “closely associated” in the provision of services to passengers.

7. [77]

   The plaintiff noted that, in the absence of a defence, the Court should not proceed upon the basis that there is any material difference of fact between the way Scenic operated its cruises, which were the subject of the proceedings in Moore (No.2), and which are the subject of these proceedings.

8. [78]

   The plaintiff submitted in response to the defendant’s submission, that there was no cause of action set out in the Statement of Claim relevant to the Group definition, by pointing to the extensive particularisation in paragraphs 5A and 5B of the ASC. It submitted that in determining whether or not one was a group member, the appropriate test of principle was that enunciated by Sackville J in Petrusevski v Bulldogs Rugby League Club Ltd [2003] FCA 61 at [23], where his Honour said:

9. [79]

   The plaintiff submitted that the mere fact that the particularisation of the definition of the group included alternatives did not mean that the definition was unintelligible or ambiguous.

10. [80]

    The plaintiff referred to Sackville J’s remark at [30] of Petrusevski:

11. [81]

    In oral submissions, counsel for the plaintiff took the opportunity to emphasise that the pleading that Scenic operated the Cruises reflected Scenic’s own description of what it did on the evidence led in the preliminary discovery proceedings, and that there is no suggestion that the services which were provided, and the experience which each passenger had on each cruise, were in any way differentiated between those who booked (or perhaps contracted) in a country other than Australia. In other words, the plaintiff emphasised the fact that International passengers and Australian passengers received the same services on each cruise, had been the subject of substantially the same promotional material about what they would receive, and that, depending on the cruise, they had each suffered disruptions and consequent disappointment with respect to their experience.

12. [82]

    It was submitted that a potential group member would have no difficulty in comparing the promise which was made to them in the brochures with the reality of what was provided on the cruises.

13. [83]

    The plaintiff submitted that the so-called ambiguity, vagueness and unintelligibility of the pleading was more in the imagination of the defendant than in the reality of what the pleading contained.

Discernment

1. [84]

   It is convenient to first deal with the question of whether or not the proceedings have been properly commenced under Part 10 of the CPA.

2. [85]

   It is to be noted that there are three requirements of a threshold kind which are to be satisfied before proceedings are commenced properly in accordance with s 157 of the CPA.

3. [86]

   The first of these is that seven or more persons have claims against the same person. No submission was made that this provision had not been satisfied. The evidence to which I have referred, which notes that there were many more than seven passengers on the cruise which the plaintiff took, is sufficient of itself and without any further consideration for the Court to be satisfied about this provision.

4. [87]

   The second matter is that the claims of all of those persons “… are in respect of, or arise out of, the same, similar or related circumstances …” and the third is that the claims of all of the group members “… give rise to a substantial common question of law or fact”. It is convenient to consider the second and third threshold questions together. In considering these two threshold questions, it is appropriate to proceed in accordance with the approach of the Court of Appeal in Nguyen v Rickhuss [2023] NSWCA 249.

5. [88]

   At [22], the Court (Ward P, Leeming JA and Basten AJA) said:

6. [89]

   Further, the Court considered the interpretation of s 157(1)(c). At [27], it said:

7. [90]

   Further, the Court noted the question could be ‘common’ even if a defendant chose to adduce different evidence in respect of each aspect of the claim.

8. [91]

   As well, the Court noted that in Bright v Femcare Ltd [2002] FCAFC 243; 195 ALR 574, Kiefel J said at [126] (in reference to s 33C(1) of the Federal Court of Australia Act 1976 (Cth), the counterpart of s 157(1)(c)):

9. [92]

   The requirement of these threshold conditions was also considered by the High Court of Australia, again addressing the provisions of s 33C in Wong v Silkfield Pty Ltd [1999] HCA 48; 199 CLR 255 where the Court (Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ) said this:

10. [93]

    The High Court noted at [30] that it was not necessary to show that litigation of the identified common issue would be likely to resolve wholly, or to any significant degree, the claims of all of the group members.

11. [94]

    The ASC pleads that the defendant supplied services defined as being a “… luxury European river cruise experience on the Rhine/Main/Danube river system including on-board and on-shore services …” to the plaintiff and to the group members.

12. [95]

    It further pleads that the services breached the consumer guarantees in the ACL because they were not reasonably fit for the particular purpose and were not of such a nature and quality as might reasonably be expected to achieve the desired result.

13. [96]

    I accept the submission of the plaintiff that the question of membership of the represented group is a relatively straightforward task to determine because there are only two relevant qualifying criteria – first, whether a person booked or travelled on one of the Cruises, and, secondly, whether they suffered loss and damage by reason of a breach of the consumer guarantee.

14. [97]

    The lengthy particulars appended to paragraph 2, and the description of the services in paragraph 5A, do not derogate from those qualifying criteria, and do not tell against a conclusion that the claims are in respect of “the same, similar or related” circumstances.

15. [98]

    To me it is clear that the ASC, amongst other things, identifies how it was that the defendant operated each of the Cruises, the services provided, by whom they were the provided and the nature and quality of those services. The conclusion which may be drawn as to whether they complied with the ACL or not would fall within the description of “substantial common law or fact”.

16. [99]

    Towards the end of the ASC, common questions of fact or law are identified in Questions 1A to 1C (inclusive) as consisting of these matters: namely whether the defendant operated the cruises, whether it supplied services to the group members by operating those cruises or else whether it supplied services more generally.

17. [100]

    As well, Questions 1, 2, 3 and 4 address the requirements for the consumer guarantees of the ACL to arise and be applicable. Any one of those questions, and together all of them, are in my view a substantial common question of law or fact within the interpretation of that phrase in s 157(1)(c) as called for by the authorities, to which I have made reference. For example, a determination as to whether the ACL is applicable to International passengers will affect more than half of the group. It is a substantial common question of law.

18. [101]

    Returning to the preceding question arising by reference to s 157(1)(b) is whether the claims of all of the group members arise out of “… the same, similar or related circumstances …”.

19. [102]

    I do not accept the defendant’s submission that only the cruise upon which Mr Kelly, the named plaintiff, was a passenger, can be regarded as containing the same, similar or related circumstances. In my view, that does not appropriately allow for the reality of what occurred.

20. [103]

    From the submissions, it seems that the defendant and a company in each of Canada, the UK and USA bearing the name “Scenic” (or in the case of Canada “ST Touring”), each trading as “Scenic” in their respective locations and each using brochures which are in substance the same, offer cruises on the same ships, travelling on the same river system as are offered to Australian passengers. The passengers on each ship come from a variety of places, as the numbers referred to above demonstrate. But they all travel on the same ship. On that ship, they all receive the same services. No distinction is drawn about the provision of services on board the ship, and the conduct of the cruise itself, between the place of origin or residence, or the name of the Scenic company with which a booking was made, at all. Those matters are simply irrelevant to the “Scenic experience” which the brochures offer to provide.

21. [104]

    A comparison between the Scenic experience offered by the brochures to passengers on each of the Scenic cruises on the European river system leads me, inevitably, to the conclusion that in the time period nominated, given that it is alleged that the cruises were disrupted by the same or a similar weather pattern in Europe creating drought-like, and low water conditions, that the claims arise out of similar or related circumstances as between each cruise, and on any one cruise the claims of the group members on those cruises arise out of the same circumstances.

22. [105]

    The principal argument is that the International passengers could not fall within the pleading in whatever way it may be interpreted because they contracted with a different company and that the defendant did not provide services for the purposes of those contracts.

23. [106]

    It is convenient to note that in Karpik v Carnival PLC [2023] HCA 39, the High Court (Gageler CJ, Gordon, Edelman, Gleeson and Jagot JJ) said at [38] this:

24. [107]

    In Karpik the High Court went on to hold that the provisions of the ACL were applicable to a travel contract that was entered into by a Canadian who was a passenger on a ship which departed Sydney for an identified cruise. It was said that the contract between the Canadian passenger and Carnivale PLC which included a “class action waiver clause”, was not subject to the ACL. It was subject to the exclusive jurisdiction in favour of the United States District Courts for the central district of California and Los Angeles.

25. [108]

    I should also note that the principal defendant was a company incorporated in the United Kingdom, and at the time the charterer and operator of the ship in question was a company registered in Bermuda, headquartered in Florida, and which had its principal place of business in California.

26. [109]

    As a matter of principle, there is no barrier to the pleaded cause of action in these proceedings applying to the International passengers. Whether it did apply to International passengers on the facts proven is a different question. Undoubtedly the question of whether the ACL applied to International passengers or not is a question which is of substance and which is a common question of law applicable to the group members, or at least more than 50% of them.

27. [110]

    I am unpersuaded that the proceedings were not appropriately commenced in accordance with s 157(1) of the CPA.

28. [111]

    It is necessary to consider the strike out application for some parts of the ASC, assuming it is otherwise properly before the Court.

29. [112]

    The real criticism of the pleading by the defendant is that certain terms and expressions which have been used are ambiguous. What does it mean, the defendant submits, when the pleading says it “operated a cruise”? The short answer to that proposition is that that is the term used by the defendant itself in the preliminary discovery proceedings. It is a simple expression which is to be read as encompassing the provision of the services which the defendant advertised in the Australian brochure. It is the provision of the Scenic experience – a luxury, once in a lifetime, 5-star cruise along the European river system.

30. [113]

    The defendant then says that the use of the terms “associated entity”, “working jointly”, “Scenic or any other entity” are of such ambiguity that it cannot understand the pleading against it.

31. [114]

    The short answer to that argument is that, as is apparent from the material put before the Court, it is to be the defendant’s case that it did not operate any cruise for any International passenger, it did not enter into any contract with any International passenger, and that through different companies bearing the name “Scenic” and which apparently are part of the Scenic group, because of the similarity of branding, email addresses and the apparent existence of a readily accessible single computer system covering all passengers (whether International or Australian) wherever they were based and with whomever they contracted, means that the defendant is the best-placed party in the proceedings to know what it did. In no sense is the nature of the pleading ambiguous in such a way as would cause any prejudice whatsoever to the defendant, thereby constituting embarrassing proceedings.

32. [115]

    The inclusion of alternative constructions of fact, for example whether a cruise was operated by Scenic or “another associated entity”, or “a related entity”, do not speak of ambiguity. What the alternative constructions do is to provide different paths by which the plaintiff seeks to sheet home liability to Scenic. They do not, on the facts of this matter, create uncertainty or ambiguity of a kind which constitutes any “embarrassment” necessary to activate the provisions of r 14.28.

33. [116]

    I am not satisfied that there is any basis for a complaint about the pleading.

34. [117]

    It is my conclusion that what the pleader has attempted to do is to cover off, in advance of the receipt of any Defence, the possibilities that have been raised in the correspondence prior to the filing of the Amended Statement of Claim.

35. [118]

    There is simply no ambiguity of a kind that would give rise to the existence of an embarrassing proceeding.

36. [119]

    Accordingly, I conclude that the orders sought in the Notice of Motion should be refused, and the Motion dismissed. Costs should follow the event.

37. [120]

    The defendant should be ordered to pay the plaintiff’s costs of the defendant’s Motion of 1 December 2022.

38. [121]

    However, the filing of the Motion did have the result of the plaintiff filing the ASC. The usual order for the costs of and occasioned by the filing of that amended pleading should be made.

39. [122]

    Insofar as the determination of this Motion includes addressing any outstanding issue of costs of the Motion filed on 28 February 2023, which related to the production of documents pursuant to Notices to Produce issued by the plaintiff, the substance of that Motion was resolved between the parties by consent. That Motion did not require a hearing. The outcome cannot be described as a complete capitulation by one party or the other.

40. [123]

    In my view, it is appropriate that each party should pay his and its own costs of that Motion of 28 February 2023.

Orders

1. [124]

   I make the following orders:

   1. (1)

      Notice of Motion of the defendant filed on 1 December 2022 is dismissed.

   2. (2)

      The plaintiff is to pay the costs of and occasioned by the filing of the Amended Statement of Claim.

   3. (3)

      With the exception of Order 2, the defendant is pay the plaintiff’s costs of the Motion of 1 December 2022.

   4. (4)

      Each party is to pay his and its own costs of the Notice of Motion filed 28 February 2023.

   5. (5)

      Fix the proceedings for further directions at 2pm on Thursday 14 March 2024.

   6. (6)

      Liberty to apply.