Scenic Tours Pty Ltd v Moore (No 2)

1. [1]

   THE COURT: The Court delivered judgment in this matter on 24 October 2018. [1] This judgment deals with outstanding matters. It assumes familiarity with the Principal Judgment, including abbreviations.

2. [2]

   The Court made orders in the Principal Judgment dismissing Mr Moore’s claim for damages pursuant to s 267(4) of the ACL for disappointment and distress. Mr Moore’s claim pursuant to s 267(3)(b) of the ACL for reduction in the value of the services remains to be determined by the primary Judge. [2]

3. [3]

   The Court reached the following conclusions in the representation proceeding brought on behalf of Group Members: [3]

Orders

1. [4]

   The Court explained the orders to be made in the Group Members’ case as follows: [4]

2. [5]

   The parties have agreed on reformulated “Agreed Common Questions and Answers” (Agreed Questions). The document is Annexure A to this judgment.

3. [6]

   The Agreed Questions accurately reflect the conclusions reached in the Principal Judgment. Although the Agreed Questions include some matters not in issue on the appeal, they are not now in dispute and it is convenient that they be included in a consolidated document. It is therefore appropriate that the Court order that the Common Questions be answered in the manner set out in Annexure A.

Costs

1. [7]

   The Principal Judgment dealt with the costs of the proceedings as follows: [5]

2. [8]

   Mr Moore filed written submissions seeking a variation to the costs order. He submitted that the parties should bear their own costs of the appeal for the following reasons:

3. [9]

   The principles relevant to the costs of proceedings in which there has been a “mixed outcome” were recently restated in Avopiling Pty Ltd v Bosevski: [6]

4. [10]

   Mr Moore’s written submissions in substance concede that Scenic enjoyed a significant degree of success in relation both to Mr Moore’s individual claim and the claims made on behalf of the Group Members. Mr Moore contends, however, that the issues on which Scenic succeeded were essentially questions of law while Scenic failed on factual issues. Accordingly, so Mr Moore argues, more time was spent on the issues on which Scenic failed than on the issues in respect of which it succeeded.

5. [11]

   These submissions do not fairly reflect either the way in which the appeal was conducted or the outcome. A major part of Mr Moore’s case at trial (both his personal claim and the claims brought on behalf of Group Members) rested on allegations as to Scenic’s knowledge of river conditions and the adequacy of its response prior to embarkation of each cruise. Many of these allegations were introduced by way of late amendments to the pleadings. [7] Scenic succeeded in setting aside the bulk of the primary Judge’s findings on these allegations. Because of Scenic’s success on these issues some of the factual questions explored at trial turned out to be either irrelevant to the appeal or unnecessary to decide. This was so notwithstanding that the parties devoted considerable attention in their submissions to the factual questions.

6. [12]

   A good deal of time at the trial was also devoted to considering the consequences of the parties’ failure to identify clearly the common issues of law and fact arising in the proceedings. This failure must largely be attributed to the manner in which Mr Moore presented the claims. It was primarily his responsibility to ensure that the representative proceedings were constituted and pursued in accordance with the requirements of the Civil Procedure Act 2005 (NSW). [8] The failure to do so created difficulties not only at the trial but on the appeal. Among other things, the parties were at odds as to precisely what had been decided and whether Scenic had been denied procedural fairness by the primary Judge making certain findings in the Group Members’ case. The arguments on these matters were largely the consequence of the failure to structure the litigation around common questions of law and fact.

7. [13]

   It is true that not all Scenic’s challenges to the findings and conclusions of the primary Judge succeeded. In particular Scenic’s attack on the primary Judge’s characterisation of the “services” Scenic provided to customers was rejected. Had that attack succeeded it would have been fatal to Mr Moore’s case and that of the Group Members. Mr Moore’s success on this challenge must be taken into account in determining the appropriate costs order.

8. [14]

   It would be quite inappropriate to attempt to assess costs in this case on an issue by issue basis. Many of the issues overlapped or were inter-related, while others were generated by the failure to identify satisfactorily common issues of law or fact. It is therefore necessary to adopt a “relatively broad brush approach”. Having regard to the parties’ respective successes and failures on the appeal and Mr Moore’s particular responsibility for increasing the complexity and cost of the appeal, the orders made in the Principal Judgment should stand.

Orders

1. [15]

   The following additional order should be made: