Curtis v Potter & Co Pty Ltd t/as The Africa Safari Co

Background

1. The underlying facts were not disputed by the parties before the Tribunal, or on appeal. In essence, the appellant and his wife wished to travel to Africa, and to visit, in particular, game reserves. They engaged the services of the respondent, which is known as The Africa Safari Co, to prepare an appropriate itinerary for them and to recommend appropriate locations to visit and accommodation.
2. The appellant and his wife departed as planned, but were dissatisfied in a number of aspects with the trip. Upon their return they filed proceedings in the Tribunal seeking compensation of $9,640.00. This claim consisted of the following components.
3. First, they sought a refund for accommodation at the Andersson Camp (being $200.00), as they considered the accommodation did not meet the standard they were expecting. This claim was rejected by the Tribunal.
4. Secondly, the appellant claimed that many of the animal drives they went on in Botswana were in national public parks, and not on private concessions, as they expected. They sought compensation of $4,500.00 for this issue. This claim was also dismissed by the Tribunal.
5. Thirdly, the appellant claimed damages in respect of a change in accommodation for the last three days of the trip. The location was changed from Camp Xakanaxa to Xugana Island Lodge. The appellant claimed that Xugana Island Lodge was located on a small island, with no game parks or large animals.
6. The Tribunal accepted that the respondent had failed to clearly inform the appellant of the change in accommodation and found there had been a contravention of s18 of the Australian Consumer Law (NSW) (ACL (NSW)) as that law applies in New South Wales pursuant to s 28 of the Fair Trading Act 1987 (FT Act). The appellant sought a full refund of $5,140.00 for the cost of the accommodation. The Tribunal made an award for loss and damage under s 236 of the ACL (NSW) and allowed 20% of that amount, that is $1,028.00, as being "a fair and equitable order" pursuant to s 79N of the FT Act.

Notice of Appeal

1. The appellant raises a number of grounds of appeal, which we summarise as follows: 1. The decision did not redress proportionately the respondent's breaches of the Australian Consumer Law. 2. The decision did not take into account that the holiday was a "once in a lifetime" experience. 3. The decision did not reflect the financial loss suffered by the appellant and his wife for three wasted days. 4. The Tribunal did not take into account the unconscionable conduct of the respondent. 5. The Tribunal did not sufficiently take into account the misleading and deceptive conduct of the respondent.
2. The appellant also says that the Tribunal either failed to take into account, or failed sufficiently to have regard to, s 79U(2) of the FT Act, and ss 18, 20 and 21 of the ACL NSW, which the appellant referred to as the Competition and Consumer Act 2010 (Cth) (CC Act).
3. Essentially these grounds were that: 1. Requiring the signature on a single page booking form which constituted a contractual document was unconscionable where the booking form did not have the complete and detailed itinerary. 2. There were representations by silence in failing to inform of changes to the itinerary. 3. It was unconscionable to provide an itinerary which included a location at which the so-called "Big Five" African animals could not be viewed.
4. In passing, it should be noted that s 22 of the ACL (unconscionable conduct in business transactions with a business consumer) appears to have no relevance to the present dispute. However, we have treated this ground as referring to s 21 of the ACL.
5. The appellant asks the Appeal Panel to award compensation for "three days wasted" at Xugana Island Lodge in the amount of $5,140.00; and "compensation for lack of opportunity and time wasted in travelling to game parks" in the amount of $4,300.00. Therefore, and as was confirmed in the appellant's written submissions, the appellant was seeking an order that he be paid total compensation of $9,640.00, being: 1. $5,140 for the time spent at Xugana Island Lodge; which the appellant described as a "totally wasted"; and 2. $4,500, which the appellant states he is "prepared to accept", in lieu of a total claim of $6,560.00, being compensation for: 1. returning to Okavanago Delta in Botswana to make up for the experiences the appellant had missed out on being no longer feasible or financially viable, for which the appellant claimed $2,000.00; 2. compensation for lack of close contact to the animals (excluding the time spent at Xugana Island Lodge), $1,400.00; 3. compensation for the "total time (money) wasted in driving" from the appellant's accommodation to distant viewing areas in the Game parks, which he calculated at $3,160.00.
6. As noted, the appellant seeks leave to appeal. He submits that he and his wife may have suffered a substantial miscarriage of justice because the decision was not fair and equitable, and because it was against the weight of the evidence before the Tribunal.
7. As to the decision being not fair and equitable, the appellant submits that: 1. The Tribunal's finding of wrongful conduct "were minimised in favour of the respondent". 2. The Tribunal did not have sufficient regard to the purpose of the trip, which was to see specified African animals, and to the fact that time was otherwise spent in travelling to viewing location, whereas it was expected the safaris would be on "Private Concessions". 3. The findings about the appellant's level of education and literacy were irrelevant and offensive.
8. In relation to the decision being against the weight of the evidence, the appellant notes that he had submitted a 74 page folder of documents at the Tribunal hearing, and then gives some 15 examples of evidence to which he submits the Tribunal should have given more weight. The Appeal Panel was not provided with these documents nor did the sound recording of the original hearing, although directions had previously been made for this to occur if a party wished to rely on this material.

Reply to Appeal

1. The respondent filed a Reply to Appeal on 5 January 2016. In that document the respondent was asked to indicate whether it supports the original orders made by the Tribunal. The respondent indicated that it did. The respondent was also asked to reply to each of the grounds of appeal appearing in the Notice of Appeal. The respondent did not do so.

Submissions of the Appellant

1. The appellant filed two bundles of documents in the appeal on 2 February 2016 and 12 February 2016. These documents include submissions, an annotated version of the Tribunal's reasons for decision in which the appellant comments on most of the reasoning and findings of the Tribunal; his draft itinerary of 2014; his final itinerary of May 2015; facts sheets and other information about several of the destinations on the tour; separate submissions titled "private concessions versus National Public parks; the booking form of 11 July 2014; a chronology, a document titled ""presentation for appeal"; documents which were described by the appellant as "further evidence"; and a copy of the statement of Ms Rachel Beach dated 18 August 2015 excluding any annexures.
2. The appellant states in his document "Overview of Appeal" that his appeal is about two issues: 1. "The respondent sent us to the wrong place. 2. The game drives were not conducted in private concessions".
3. In relation to the first issue, the appellant submits that the $1,028.00 award was not sufficient compensation for the respondent's breaches of "the Consumer laws and industry regulations".
4. In relation to the second issue, the appellant submits that the Tribunal ignored his claim, and accordingly failed to award any compensation for the respondent's misrepresentations.
5. These submissions are amplified in the appellant's document "Presentation for Appeal", included in his filed materials of 12 February 2016. In relation to the first issue the appellant submitted that: The Member did not give sufficient weight to the fact that the Respondent clearly and deliberately mislead us by substituting the Xugana Island Lodge instead of Camp Xakanaxa at which we had already agreed to stay, without providing me with any notice of this change or seeking my approval. Thereby we were misled by deception, not only regarding the location of the camp but also as to the (inferior) range of activities provided by the Xugana island Lodge. The substituted lodge was also of an inferior quality to the agreed camp as it is rated four star accommodation instead of the five star accommodation we agreed on and paid for.
6. In relation to the second issue, the appellant submitted that: We were expecting Game Drives in Botswana and Etosha, Namibia to be conducted in Private Concessions where there are fewer cars and more freedom to drive off-road, instead all of our safaris in Botswana were in Public Game Parks and it was not unusual to see a convoy of cars following one another and the vehicles were not allowed to deviate from the established tracks.
7. The appellant also provided oral submissions to the Appeal Panel. In short, he said that the Decision "totally ignored" the evidence.

Submissions of the Respondent.

1. The respondent filed written submissions on 23 February 2016. In summary, the respondent states: 1. A perusal of the Tribunal's "detailed judgment" will show that the appellant's submissions are correct, particularly in that she specifically referred to both the Fair Trading Act 1987 and ss 18, 20 and 21 of the Competition and Consumer Act 2010. 2. The Tribunal made a clear finding that the respondent did, in certain instances, breach the Australian Consumer Law, and then considered what was fair compensation for those breaches, finding that a 20% refund of the cost of the three days was fair and equitable. 3. The appellant's issue relates to the amount of compensation awarded, and therefore does not raise a question of law. In the event that the Appeal Panel grants leave to the appellant to appeal on grounds other than a question of law, the respondent submits that the compensation representing a 20% refund was fair and equitable.
2. In oral submissions at the hearing, the respondent submitted, in summary, that: 1. The only issue raised on appeal was the amount of compensation awarded by the Tribunal. This was not a question of law, and the respondent opposed leave being granted to the appellant to pursue this appeal. 2. The findings of fact of the Tribunal were not challenged.
3. The respondent filed various documents on 23 February 2016 including but not limited to a chronology; the submissions referred to above; and the statement of Ms Beath of 18 August 2015, including the annexures. Those annexures relevantly included a long email chain disclosing the communications between the appellant and the respondent in the period 22 May 2014 to 11 July 2014, when the appellant signed the appellant's booking form (Annexure B); and the itinerary sent to the appellant on 11 July 2014 (Annexure C).

Consideration

1. This is a dispute arising from a contract between the parties, whereby the respondent agreed to provide tour services to the appellant for a trip in Africa. The relevant findings of fact by the Tribunal concerning the formation of the contract and a chronology of communications are set out in the Decision under the heading "Background", pars (a)-(v).
2. These findings were not challenged on appeal. In particular, in connection with the claim concerning Xugana Island Lodge the Tribunal found the following facts: 1. On 20 June 2014 the respondent provided an itinerary including a visit to Camp Xakanaxa; 2. The itinerary was subject to a number of revisions, particularly in relation to dates of travel and accommodation on particular dates; 3. On 7 July 2014 and invoice (no. 2) was sent advising accommodation was at Xugana Island Lodge, although the email includes a reference to Camp Xakanaxa. 4. On both 10 July and 11 July 2014, the respondent sent the appellant documentation which stated the appellant and his wife would be accommodated for three nights from 16 July to 19 July 2016 at the Xugana Island Lodge. 5. On 11 July 2014, the appellant and his wife signed a booking form. The Tribunal found that the booking form stated: Please check with the Africa Safari Co or your Travel Agent prior to finalising your booking and paying deposits to ensure that all information is correct.
3. Further, there was no challenge in the appeal that the documents provided to the Appeal Panel formed the contract between the parties. In this regard, Appeal Panel notes that the booking form, which was attached to the statement of Ms Beath and included in the appellant's bundle of documents states immediately below the signatures of the appellant and his wife: My signature acknowledges that I have read, understood and accept the Terms and Conditions as set out by "The Africa Safari Co" and agree to be bound by the terms and conditions including cancellation charges.
4. The principal issues raised by the appellant are that: 1. The Tribunal was in error in failing to conclude that there was a contractual obligation for safaris to be provided on "Private Concessions" and not Public Game Parks in Botswana or that the respondent had misrepresented the nature of the safari services to be provided; 2. The amount of compensation the Tribunal ordered in respect of the three nights' accommodation at Xugana Island Lodge was insufficient having regard to the respondent's breach of the ACL (NSW) as found by the Tribunal. 3. The Tribunal was in error in making the award in respect of the Xugana Island Lodge claim because: 1. the appellant's capacity to read and understand the documents, namely the itinerary, which he had received almost 10 months prior to departure and that the appellant had "sufficient time to read, consider and check the information and the documents sent by the respondent" was irrelevant to what award of damages should be made; and 2. The finding that the appellant "was in a position to protect his interests", and that it would not be fair or equitable to refund to the appellant a full refund of the costs of the three days' accommodation at the Xugana Island Lodge and that the appellant had partly contributed to the loss he now claimed was not a proper basis to reduce the amount of the award.

Entitlement to Appeal

1. The grounds of appeal raise questions of law for which there is an appeal as of right and questions for which leave to appeal is required: see s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NCAT Act).
2. Because the proceedings are an appeal from a decision of the Consumer and Commercial Division of the Tribunal, cl 12 of Sch 4 of the NCAT Act provides that leave may only be granted if the appellant is able to demonstrate he may have suffered a substantial miscarriage of justice. The principles applicable to the grant of leave are set out in the decision of Collins v Urban [2014] NSWCATAP 17.

Failure to provide game drives on Private Concessions

1. In relation to this aspect of the appeal the Tribunal provided the following reasons: With this part of the claim I am not satisfied that there is evidence to establish that there has been a breach by the respondent of the contract with the applicant, or that there has been any conduct by way of representation in relation to Private concessions which has misled the [appellant] The complaint by the [appellant] is very general. He has identified dates but there is little evidence as to which parks were visited on what dates, and how far those parks were from the accommodation. Nor is there specific information on driving times or waiting times. This is insufficient evidence to establish how the time was spent and that it was directly related to the difference between public and private parks. Accordingly this part of the claim is dismissed.
2. As indicated from the chronology in the Decision, the parties entered into a contract for the provision of the tour by the appellant signing the booking form dated 11 July 2014 (which was returned by email by the appellant to the respondent on 11 July 2014) and paying to the respondent a deposit of $9,420.00 on 14 July 2014. The total price for the tour was $31,400.00.
3. The email returning the booking form was sent in response to two emails from the respondent to the appellant. The first is the email dated 10 July 2014 sent at 12:22 PM which sets out the accommodation being provided and the dates at each accommodation. The second was sent on 11 July 2014 at 13:19 PM which attached an "updated invoice" for the tour. The Appeal Panel notes that the first email records: 16-19 Jul: 3 x nights Xugana Island Lodge There is no mention of Camp Xakanaxa in this email.
4. There appears no dispute in this appeal that a tax invoice and an 11 page itinerary (Itinerary) which formed part of the respondent's appeal bundle was attached to that email dated 11 July 2014. Those documents are found in the respondent's bundle tendered on appeal immediately after the booking form signed by the appellant. The Appeal Panel notes the itinerary and invoice both refer to Xugana Island Lodge.
5. Together these documents constituted the contract for the supply of services.
6. As recorded in the Decision, the appellant identifies the days of the 5 (half only), 6, 11, 12, 13, 14 and 15 July 2015 as stays on which he and his wife visited national public parks rather than private concessions.
7. An examination of each of the venues and activities in the Itinerary indicates that various activities were being offered at the relevant locations including game drives or safaris. However, at none of these venues identified by the particular dates referred to above is there any statement to the effect that the animal drives or safaris will be conducted on "Private Concessions". To the contrary, the entry on 6 July 2015 for the Ongava Reserve provides: Today participate in scheduled activities at the Etosha National Park. Etosha National Park offers excellent game viewing in one of Africa's most accessible venues. Zebra and springbok are scattered across the endless horizon, while the many water holes attract endangered black rhinoceros, line, elephant and large numbers of antelope. Accommodation: Andersson's Camp in 1 x Double Tent including all meals, local branded drinks, scheduled game activities, park fees and laundry.
8. Similar notations of "scheduled game activities, park fees" are recorded under some, but not all of the other venues.
9. Similarly, on 12 July 2015, the Itinerary provides: Participate in scheduled activities in the Chobe National Park.
10. In our opinion, these provisions of the contract did not require that any safaris or game drives at the locations on the identified dates be at "Private Concessions" rather than at national parks open to the public. Accordingly, the Tribunal was correct to conclude there had been no breach of the terms of the contract.
11. The second aspect of this ground of appeal is that the respondent had engaged in misleading or deceptive conduct or had acted unconscionably.
12. There are no features of the respondent's conduct which the appellant has identified which would lead to the conclusion that the respondent had engaged in unconscionable conduct. Relevant to this determination are the matters set out in s 21(2) of the ACL, including "whether the consumer was able to understand any documents relating to the supply or possible supply of the goods or services".
13. The findings of fact by the Tribunal of the appellant's capacity to read and understand documents count against the claim by the appellant that the respondent engaged in conduct that was, in all the circumstances, unconscionable. Accordingly, this ground of appeal fails.
14. Lastly, the appellant relies on a claim of misleading and deceptive conduct in contravention of s 18 of the ACL.
15. As made clear in Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31; 110 ALR 608, the fact that no positive statement was made does not preclude a finding of misleading and deceptive conduct causing damage. Silence may itself constitute such conduct. However, as Black CJ said: Silent is to be assessed as a circumstance like any other. To say this is certainly not to impose any general duty of disclosure; the question is simply whether, having regard to all the relevant circumstances, there has been conduct that is misleading or deceptive or that is likely to mislead or deceive.
16. While it seems clear that some of the accommodation at which the appellant was staying with his wife may be seen to be, to some extent, exclusive or private, this fact is not sufficient in all the circumstances of the case to justify a conclusion that the respondent had engaged in misleading and deceptive conduct concerning whether game drives or safaris would be at national parks accessible to the public rather than at private parks or separate to other game drives of safaris. Nor is there any evidence to establish that the time spent getting to or from park locations was excessive or that there were any other circumstances that amounted to misleading or deceptive conduct of the type for which the appellant contends. To the contrary, the terms of the contract as set out above and the findings of the Tribunal or that there were "no guarantees" in relation to what animals would be seen and at what distance, count against such a finding.
17. Accordingly, the appellant has failed to demonstrate any relevant error in the Decision.

Damages in respect of Xugana Island Lodge

1. There is no challenge in this appeal to the finding that the respondent had engaged in misleading and deceptive conduct in connection with the Xugana Island Lodge location. The relevant findings were in the following terms: Given that the "Full Itinerary" sent on 3 June 2014 notes that at page 15 of the applicant's documents that Camp Xanankas had "extensive safari drives" and activities included "game drives in open Land Rovers", I find that the applicant proceeded with the book (sic) on the basis that all parts of the trip would have game drives available. As the respondents email around early July failed to clearly inform the applicant of the change in location and style of accommodation I find that the respondents representation in the email dated 24 June 2014 (at page 35 of the applicants document) which referred to the respondent making arrangements that day to have "everything provisionally held" and those arrangements clearly provided for 3 nights at Camp Xakanaxa, that the respondent's failure to clearly inform of the change and seek approval was conduct that was likely to mislead the applicant. This constituted a breach of section 18 of the Australian Consumer Law. Even though the applicant had an opportunity to check the invoices more closely to ascertain there had been no changes other than dates, I accept the applicant's submission that as they have already researched accommodation and it was only dates that had to be changed, the applicant did not consider it necessary to check everything again. For this part of the holiday the applicant seeks a refund of the full 3 days accommodation. As the trip was priced at $1700 per day, being a price with all the inclusion such as flights, tours and accommodation, both parties agreed it was not possible to glean out of the accommodation component. I am satisfied that there is loss and damage suffered by the applicant in that the game drives were not available for this part of the trip, which is what the applicant had bargained for.
2. In relation to the award made, the Tribunal said (at Decision pages 7-8): … I am satisfied that the failure to specifically correct the representation that the applicant would be staying at Camp Xakanaxa with its game drive activities, was likely to mislead the applicant into believing that the itinerary was prepared in accordance with their instructions to see lots of animals and to go on lots of game drives. I find that when staying at Xugana Island Lodge the range of activities to see large animals was much more limited than the opportunities the applicant would have had at Camp Xakanaxa. Under section 79U(1) of the Fair Trading Act NSW 1987 (the) Tribunal must make orders that are fair and equitable between the parties. Section 79U(2) sets out a number of factors, which the Tribunal may take into account when determining to make an order. Those factors include whether a party to the claim was not reasonably able to protect its interests, the educational background and literacy of the party is also relevant stop I find that the applicant has a high level of education and literacy. I also find that there was almost 10 months prior to departure giving the applicant sufficient time to read, consider and check the information and documents sent by the respondent. I find that he was in a position to protect his interest. By not reading the invoices and final itinerary in detail prior to signing the booking form or even leaving for the holiday, the applicant failed to notice that there had been a change in accommodation for the last 3 days stop this failure partly contributed to the loss he now claims. I also note that the booking form states that all information should be checked. For this reason, I do not consider it fair or equitable to order against the respondent a full refund of 3 days. There were other aspects of the $1700 per day that the applicant had the benefit, which is also a relevant factor in deciding what would be fair and equitable. For all these reasons I consider a fair and equitable order under section 79N (a) of the Fair Trading Act in relation to the Xugana Island Lodge claim would be to grant a refund of 20% of the cost of 3 days, which calculates at $1028.
3. The question to be resolved on the appeal is whether or not the award of $1,028.00 as provided in the Decision was an appropriate award of damages. The applicable principles are as follows.
4. The assessment of damages in cases involving misleading and deceptive conduct was considered by the High Court of Australia in Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1. In that case, Mason, Wilson and Dawson JJ said at 11: The Act does not prescribe the measure of damages recoverable by a plaintiff or contravention of the provisions of Pts IV and V. Accordingly, it is for the courts to determine what is the appropriate measure of damages recoverable by a plaintiff who suffers loss or damage by conduct done in contravention of the relevant provisions. To establish measures of damages, those applicable in contract and tort respectively, compete for acceptance. In contract, damages are awarded with the object of placing the plaintiff in the position in which he would have been had the contract been performed - he is entitled to damages for loss of bargain (expectation loss) and damage suffered, including expenditure incurred, in reliance of the contract (Reliance loss). In tort, on the other hand, damages are awarded with the object of placing the plaintiff in the position in which he would have been had the tort not been committed (similar to reliance loss).
5. Their Honours then said at 14: The question then is whether it is appropriate to apply the contract measure of damages to the contraventions found to have taken place. The courts are not bound to make a definitive choice between the 2 measures of damages say that one applies to all contraventions to the exclusion of the other. However, there is much to be said for the view that the measure of damages in tort is appropriate in most, if not all, Pt V cases, especially those involving misleading or deceptive conduct and the making of false statements. Such conduct is similar both in character and effect to tortious conduct, particularly fraudulent misrepresentation and negligent misstatement.
6. More recently, the High Court said in Murphy & Anr v Overton Investments Pty Ltd [2004] HCA 3 at [44]-[45]: 44 This Court has now said more than once that it is wrong to approach the operation of those provisions of Pt VI of the Act which deal with remedies for contravention of the act by beginning the enquiry with an attempt to draw some analogy with a particular form of claim under the general law. No doubt analogies may be helpful, but it would be wrong to argue from the content of the general law that has developed in connection, for example, with the tort of deceit, to a conclusion about the construction or application of provisions of Pt VI of the Act. To do so distracts attention from the primary task of construing the relevant provisions of the Act. In the present case, analogies with tort of deceit appear to have led to an assumption, at least at trial, that a person can suffer only one form of loss or damage as a result of a contravention of Pt V of the Act. 45 The Act's references to "loss or damage" can be given no narrow meaning. It follows that the loss or damage spoken of in ss 82 and 87 is not confined to economic loss. What kinds of detriment constitute loss or damage, when a detriment is to be identified as occurring or likely to occur, and what remedies are to be awarded, may all raise further difficult questions. Especially is that so when it is recalled that remedies may be awarded to compensate, prevent or reduce loss or damage that has been or is likely to be suffered by contacting contravention of the Act.
7. The task of assessing damages involves determining what damages were suffered because of the contravening conduct. Section 236 of the ACL (NSW) provides: 236 Actions for damages (1) If: (a) a person (the claimant ) suffers loss or damage because of the conduct of another person; and (b) the conduct contravened a provision of Chapter 2 or 3; the claimant may recover the amount of the loss or damage by action against that other person, or against any person involved in the contravention.
8. In Henville v Walker [2001] HCA 52; [2001] 206 CLR 459, in the context of ss 52 and 82 of the Trade Practices Act 1974 (Cth) (TP Act) (which were in similar terms to ss 18 and 236 of the ACL (NSW)) the High Court said that the failure to take reasonable care by the person who suffered loss and damage by reason of contravening conduct is not a matter to be taken into account in determining the amount of loss or damage actually suffered. At [140] McHugh J said: Nothing in the common law, in s52 or s82 or in the policy of the Act supports the conclusion that a claimant's claim for damages under s82 should be reduced because the loss or damage could have been avoided by the exercise of reasonable care on the claimant's part. There is no ground for reading into s82 doctrines of contributory negligence and apportionment of damages.
9. This position has been ameliorated in the case of the Commonwealth ACL when applied to corporations. In this regard s 137B of the Competition and Consumer Act 2010 (Cth) (CC Act) provides: 137B Reduction of the amount of loss or damage if the claimant fails to take reasonable care If: (a) a person (the claimant) makes a claim under subsection 236(1) of the Australian Consumer Law in relation to economic loss, or damage to property, suffered by the claimant because of the conduct of another person; and (b) the conduct contravened section 18 of the Australian Consumer Law; and (c) the claimant suffered the loss or damage as result: (i) partly of the claimant's failure to take reasonable care; and (ii) partly of the conduct of the other person; and (d) the other person did not intend to cause the loss or damage and did not fraudulently cause the loss or damage; the amount of the loss or damage that the claimant may recover under subsection 236(1) of the Australian Consumer Law is to be reduced to the extent to which a court thinks just and equitable having regard to the claimant's share in the responsibility for the loss or damage. .
10. Whether or not such provision applies to the present case is uncertain where a claim is brought under the ACL (NSW): see eg Haddad v Allianz Australia Insurance Ltd (No 2) [2014] NSWDC 308 per Cogswell DCJ particularly at [13] and following.
11. Further, it may be that in the absence of a section equivalent to s 137 B of the CC Act that such matters can be taken into account by the Tribunal having regard to the provisions of s 74(3) of the FT Act which provides a discretion as to the award for damages to be made. This subsection provides: (3) The Tribunal may decide the matter of whether a person has suffered loss or damage because of the conduct of another person that constitutes a local contravention or a contravention of Chapter 2 or 3 of the ACL if that matter arises in connection with another matter the subject of proceedings in the Tribunal. In deciding the matter of loss or damage, the Tribunal may award such sum, and make such ancillary orders, as it thinks fit.
12. However, in the present case it is unnecessary to resolve these issues.
13. This is because even if concepts of contributory negligence or failure to take reasonable care do not apply, the Tribunal was still required to consider what loss and damage was actually suffered and whether the loss and damage claimed arose "because" of the contravening conduct as required by s 236 of the ACL (NSW), an expression similar to that found in the former s 82 of the TP Act which entitled a person who "suffers loss or damage by an act of another person that was done in contravention (of s 52 of the TP Act) to recover the amount of the loss or damage by action against that other person": see Miller's Australian Competition and Consumer Law Annotated, 33rd Edition at 1.S2.236.15
14. As to this issue of causation, McHugh J said in Henville at [140]: No doubt, if part of the loss or damage would not have occurred but for the unreasonable conduct of the claimant, it will be appropriate in assessing damages under s 82 to apply notions of reasonableness in assessing how much of the loss was caused by the contravention of the Act. But that proposition is concerned with the items that go to the computation of the loss. As I have pointed out, nothing in the judgments of the courts below shows that there was any unreasonable conduct on the part of Mr Henville in incurring costs or raising revenue.
15. Similarly in Henville Gaudron J said at [66]: It was held in Marks v GIO Australia Holdings that the relief available under s 82(1) of the Act is not to be confined by analogy either with actions in contract or in tort [35]. Rather, the task under that sub-section is to ascertain the loss suffered by the contravening conduct and to assess the amount necessary to compensate for that loss. Once that is accepted, it follows, in my view, that considerations of foreseeability and contributory negligence are irrelevant to the exercise required by s 82(1). However, that does not mean that, where the loss is the result of two or more acts or events, causation is irrelevant to the task of identifying the loss or the amount of the loss recoverable. To treat causation as irrelevant would be to ignore the requirement in s 82(1) that a person suffer loss or injury by contravening conduct.
16. Likewise, Mason CJ said at [35] Anderson J was entitled, in principle, to reject the claim that the whole of an amount calculated in that manner represented loss that flowed directly from the contravention of s 52 or, to use the language of the statute, that it was, in whole, loss or damage suffered by conduct in contravention of s 52. When Anderson J said that part of that loss was "down to" other factors as well, he was expressing a finding as to causation which was open in the circumstances of the case. For reasons already given, the finding of the Full Court that none of the loss was causally related to the contravention went too far, and cannot be sustained; but Anderson J's refusal to treat the whole of the loss as so related was justified. Neither the purpose of the statute nor the justice of the case requires that, having made representations which, in combination with the erroneous cost estimates of the appellants, induced the appellants to enter into the development project, the respondents should be required to underwrite all the losses, regardless of how they came to be incurred.
17. When the Tribunal makes an order in favour of the claimant in a consumer claim for which the Tribunal has jurisdiction under the FT Act, regard must be had to s 79U of the FT Act which provides: (1) When making any orders under this Division, the Tribunal must be satisfied that the orders will be fair and equitable to all the parties to the claim. (2) Without limiting subsection (1), when determining whether or not to make an order under this Division, the Tribunal is to take the following factors into consideration if they are material to the particular circumstances of the case: (a) whether or not there was any material inequality in bargaining power between the parties to the claim, (b) whether or not any party to the claim was not reasonably able to protect the party's interest because of the age or physical or mental capacity of that party, (c) whether or not any person who represented any of the parties to the claim was not reasonably able to protect the interests of the party represented because of the age or physical or mental capacity of that person, (d) the relative economic circumstances, educational background and literacy of the parties to the claim and of any person who represented any of those parties, (e) whether or not and when independent legal or other expert advice was obtained by the claimant, (f) whether any undue influence, unfair pressure or unfair tactic was exerted on or used against the claimant: (i) by any other party to the claim, or (ii) by any person acting or appearing or purporting to act on behalf of any other party to the claim, or (iii) by any person to the knowledge of any other party to the claim or of any person acting or appearing or purporting to act on behalf of any other party to the claim.
18. The nature and extent of such a power was considered by Hope JA in State Rail Authority of New South Wales v Consumer Claims Tribunal (1988) 14 NSWLR 473 in the context of the provisions of s 23(2) of the previously repealed Consumer Claims Tribunal Act 1974 (NSW) (CCT Act). That section was in the following terms: (2) In exercising its powers under subsection (1) (a), (b), (c) or (d) a consumer claims tribunal shall make such an order as is, in its opinion, fair and equitable to all the parties to the proceeding before it.
19. Of that section, Hope JA said at p 477B: ... I would respectfully agree with the conclusion reached by Yeldham J in Fairey Australasia Pty Ltd v Joyce [1981] 2 NSWLR 314 at 321 that the tribunal is not concerned with "palm tree justice, and with the conclusion of Hunt J in Jet 60 Minute Cleaners Pty Ltd v Brownette [1981] 2 NSWLR 232 at 236, that save in relation to the selection with the form of order the tribunal must act in accordance with and apply the general law in determining the claim which has been made to it.
20. His Honour then said at p 477G: Whether there is … a claim or obligation is to be determined by applying the general law. It is only where the tribunal proposes to make an order in favour of the claimant that in some cases the form of the order in his favour is to be determined according to the opinion of the tribunal as to what is fair and equitable to all parties.
21. Unlike s 23(2) of the CCT Act, s 79U(1) of the FT Act is not confined to particular types of orders that might be made. However, as with the CCT Act, the FT Act does not displace the requirement for claims to be determined in accordance with the general law. Rather, as Hope JA found in State Rail, once liability and an entitlement to a remedy is established, s79U provides scope to fashion the form of orders in a manner that "will be fair and equitable to all parties to the claim".
22. Consequently, in our opinion the Tribunal was required to have regard to the respective rights of the parties arising under the relevant law. This included assessing what was the loss or damage suffered because of the conduct of the respondent. Thereafter, the Tribunal was required to be satisfied the orders proposed to be made were fair and equitable as required by s 79U of the FT Act.
23. Difficulty of assessment is no bar to the assessment of damages, and the court or tribunal must do the best it can: Biggin and Co Ltd v Permanite Ltd (1951) 1 KB 422, per Devlin J. at p 438); Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54. In Amann at [31], Mason CJ and Dawson J note that in Jones v. Schiffmann [1971] HCA 52; (1971) 124 CLR 303 at 308, Menzies J. said that that the "assessment of damages ... does sometimes, of necessity involve what is guess work rather than estimation".
24. It is in this context that the appropriateness of the Tribunal's award of $1,028.00 needs to be considered.
25. The facts found by the Tribunal to support the award of $1,028.00 were that: 1. The cost of the whole trip amounted to a daily cost of $1,700.00, including travel. 2. Game drive activities were to be provided, those activities originally being from the Camp Xakanaxa location. 3. By reading the invoice, Itinerary and other travel documents, the appellant would have known that accommodation had changed and his failure to read or pay sufficient attention to these documents thereby contributed to his own loss. 4. Allowance should be made for the benefits which the appellant had received in respect of staying at Xugana Island Lodge.
26. In our view, the principles which we have set out above required the Tribunal to make an award for damages to compensate for the loss suffered because of the misleading and deceptive conduct as found. Assessment of damages required a consideration of the contract between the parties, the services actually provided, the consequences of the misleading and deceptive conduct and the cause of any loss claimed. In this case, the amount to be awarded was to place the appellant in the position he would have been if the misrepresentation had not been made.
27. In oral submissions, the appellant said he should receive 75% to 80% of the cost of the Xugana Island Lodge segment of the trip. The appellant said that the only activities offered at the Xugana Island Lodge location were hunting, fishing and bird watching and that there was a significant difference between this location and Camp Xakanaxa. While the appellant initially said in his Notice of Appeal that he should be reimbursed the full 3 days, in oral submissions he effectively accepted that he received the benefit of some of the features of his tour that he was expecting for this segment. This view is corroborated by the letter the appellant's wife sent to the operators of Xugana Island Lodge on 18 July 2015 thanking the operator for ensuring the appellant and his wife "got the most from (their) stay" and commenting that "the tranquility and nature that the Island provides (was) a real treat".
28. It follows from these observations and the terms of the contract that while animal drives were an important feature of the tour which was represented would be provided, the locations and services to be provided included accommodation, dining and other features which themselves were part of the "real experience" to be provided by the respondent. Further, it is clear from the evidence and the Decision that at least some of the accommodation locations were not viewing areas for the larger animals but rather places of accommodation from which it was necessary to travel to see particular animals or locations where they might be found. While it is no doubt true that the appellant was dissatisfied with what occurred, in our view his submission that the tour or this section of the tour was a "total waste" does not lead to the conclusion that he is entitled to recover the whole 3 days or even 75% to 80% of this sum.
29. As indicated above, the assessment of damages is a difficult process and, in cases like the present, may require some degree of estimation. The initial task of the Appeal Panel is not to make its own estimation of the damages, but rather to determine whether or not the award made by the Tribunal was erroneous having regards to the facts as found. While the Tribunal may deal with an internal appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing (see s 80(3)(a) of the NCAT Act) it is not obliged to do so in every case.
30. The award made equates to approximately $340.00 per day as compensation, against a total daily cost of approximately $1,700.00 per day. As well as deductions for the accommodation and travel actually provided and enjoyed by the appellant and his wife, a deduction appears to have been made on the basis the appellant caused part of his own loss by not reading the Itinerary prior to departure or at some time between signing the booking form and taking the trip.
31. In the present case the power to make orders in connection with a consumer claim is regulated by s 79U(1) of the FT Act which requires the Tribunal to be satisfied "that the orders will be fair and equitable to all parties to the claim".
32. The effect of the Tribunal's findings is that while the appellant was induced to enter the contract because of the respondent's misleading and deceptive conduct in "not correcting the representation that the (appellant) would be staying at Camp Xakanaxa with its game drive activities" (a matter not challenged on appeal), the appellant failed to review the invoice and itinerary "prior to signing the booking form or even leaving on the holiday" and his failure "contributed to the loss he now claims". Consequently the Tribunal decided it was not fair and equitable to order a full refund.
33. The Tribunal was required to determine what was the loss suffered by reason of the contravening conduct.
34. While the language used is one of contribution, the effect of the Decision is that the Tribunal determined what was the loss suffered because of the contravening conduct by reference to the average daily travel cost and concluded it was not an amount equivalent to the whole of the cost of that part of the trip in and around Xugana Island Lodge.
35. The present is not a case where but for the contravening conduct the appellant would not have gone on the trip at all. This conclusion is supported by the fact that the itinerary was in fact varied prior to the contract being entered into (albeit in the context of there being contravening conduct) to accommodate the appellant's travel requirements. It is also not a case where each accommodation location was to have the identified species in the immediate vicinity of the accommodation - a fact corroborated by the itinerary requiring travel to some game parks by vehicle. Rather, it is a case where the dealings between the parties and the terms of the contract allowed the trip to be modified to provide for particular activities at particular locations.
36. Consequently, it is not a case where the appellant got nothing and was entitled to damages equivalent to full restitution of the costs incurred. Further, it was a case in which allowance needed to be made by reference to what was received and would have been received if the contravening conduct had not occurred and what would have been received if the appellant had read the itinerary and requested that arrangements be made to view animals or undertake activities other than those in the itinerary.
37. In this regard the following facts, as disclosed in the evidence, are relevant: 1. The location of Xugana Island Lodge in the Okavango Delta; 2. The information provided in the itinerary as to the activities in the immediate vicinity of the lodge were made clear and would have been obvious if read; 3. As disclosed in the itinerary, "the Delta is the home of many species including lion, hippo, leopard and many other species including copious amounts of birds and fish to enhance your safari experience"; and 4. As necessary travel from accommodation locations in order to see different species including the "big five" could be arranged.
38. From these facts it can be inferred that if the respondent had been advised that the particular activities set out in the itinerary for the Xugana Island Lodge were not satisfactory, then alternative arrangements could have been made by further altering the activities available at this site to include viewing particular species of animals.
39. There is no suggestion in the evidence that this would have increased the cost of the trip. Further, there is no doubt that the appellant suffered some loss and damage by reason of the contravening conduct. On the other hand, to make no adjustment for the failure of the appellant to read the itinerary and request any necessary changes and make no adjustments where the appellant received some of the benefits which he intended to receive would lead to an excessive award because it could not reasonably be said that the appellant suffered a loss equivalent to the whole of the cost of the stay at the Xugana Island Lodge.
40. In essence, there was a need to evaluate what loss was caused by the contravening conduct in circumstances where the claim for a refund in whole or in part is an imperfect measure of what was not provided.
41. The amount of the reduction to the refund amount is a matter of estimation having regard to the principles we have set out above. Clearly, and in our view correctly, the Tribunal determined some award should have been made in favour of the appellant for the contravening conduct. This is because it is not a case where the actions of the appellant were the sole cause of all loss or damage. Rather, the loss or damage in part arose from contravening conduct. However, on the evidence available to the Appeal Panel it has not been shown that the Tribunal's determination as to the amount of the reduction was manifestly wrong having regard to the fact the appellant and his wife received a number of services in connection with their stay at Xugana Island Lodge and the other matters to which we have referred. The appellant's own conduct was a relevant matter to consider in determining the extent of any loss caused by the contravening conduct.
42. Accordingly we are not satisfied that any error is shown to have been made in the assessment of damages.
43. Finally, we should deal with the Tribunal's finding in relation to ss 79(2)(b) and (d) of the FT Act concerning the background, literacy and education of the appellant. The appellant submitted these matters were irrelevant to the award of damages and were indicative of the Tribunal falling into error in assessing damages.
44. In our view, this submission should not be accepted. The Tribunal was entitled to have regard to these factors in formulating orders "if they are material to the particular circumstances of the case": see s 79U(2). If there was any incapacity or particular circumstances of the appellant that may have meant that the appellant was unable to protect his interests, this may have been a reason to make a different order. It may also have been a reason not to reduce the award because a finding of incapacity may have been relevant to the question of what loss and damage was caused by the contravening conduct and whether any damage caused by the appellant's own action or inaction. The presence or absence of such circumstances was therefore a relevant factor to be considered but the finding of capacity does not mean the amount of the award was erroneous.
45. The appeal does raise a matter of importance and, to the extent necessary, leave to appeal should be granted. However, it follows from what we have said that the appeal should be dismissed.

Orders

1. The Appeal Panel makes the following orders: 1. Leave to appeal is granted. 2. Appeal dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 August 2016