Flight Centre v Janice Louw

Judgment 1HIS HONOUR: In this summons the plaintiff, Flight Centre Limited, seeks relief under s 69 Supreme Court Act 1970 from the effect of orders made in the Small Claims Division of the Local Court by the third defendant, Local Court Assessor Olischlager (the Assessor) in favour of the first and second defendants, Janice Louw and Francois Louw. 2The plaintiff is a travel agent. Part of its business, which trades as Infinity Holidays, arranges bookings of holiday accommodation and travel. The first and second defendants wished to go on holiday to a tropical resort, so they went to the premises of Infinity Holidays and spoke to an employee. The employee recommended an hotel called Le Meridien at Bora Bora, Tahiti. The first and second defendants accepted the recommendation and bookings were made. The first and second defendants stayed at the hotel from 11 to 22 April 2009. 3On most days during that period construction work was being carried out at the hotel, interrupting the first and second defendants as they rested in their room. The workers distressed them with their noise. They distressed the first defendant by staring at her. Part of the beach, assessed as 33%, was rendered inaccessible by the presence of construction vehicles. The first and second defendants had not been given notice of any of these matters. 4The first and second defendants sued the plaintiff. Their claim was framed in contract but the precise way in which breach was pleaded is of no present importance. Relevantly, the particulars of damage were pleaded thus: a. The Plaintiffs suffered loss, inconvenience and distress, disappointment as a result of the construction that were present every weekday starting Monday 13 April at 9:00am and continued until 4:00pm on a daily basis from Monday to Friday with the resultant noise and eyesore. ... e. The total cost of the accommodation and flights for the Plaintiffs was $14,696. The Plaintiffs incurred further charges for meals and travel insurance. However, the Plaintiffs confine their claim to the jurisdiction of the Small Claims Court and claims $10,000 in damages for breach of contract resulting in inconvenience, distress and disappointment. 5The Assessor heard the case and awarded the first and second defendants damages of $4,898.66. He awarded interest and ordered the plaintiff to pay the costs of the first and second defendants. 6In this summons the plaintiff seeks an order quashing the whole of the decision of the Assessor and an order directing him that there being a verdict and judgment for the plaintiff. 7It was submitted by counsel for the first and second defendants that I ought not to deal with the merits of the summons but dismiss it in my discretion. That, it was submitted, was justified because the amount awarded by the Assessor was small and because even if the Assessor erred in law his judgment was not binding on other assessors and courts likely to entertain suits for damages for inconvenience, disappointment and distress. 8I have decided that I should deal with the summons on its merits. I take into account the amount involved and the non-binding nature of the assessment. However, it seems to me that there are other factors which combine to justify a hearing. First, as was common ground, there is no other method of review, no right of appeal. Limited rights of appeal exist from the General Division of the Local Court to the District Court, but not from the Small Claims Division. Secondly, the summons seemed to me to raise questions likely to recur from time to time, if not frequently, in claims brought before the Local and other courts. Counsel for the plaintiff gave examples of cases - I will not list them - decided according to the principles for which he contended. They were determined in the District Court, the Local Court and in specialist tribunals. I am aware also of an unreported District Court decision which appears to support the correctness of the Assessor's decision and to which I shall refer in this judgment. So the matters raised appear to me to be of general importance and to justify this court's considered decision. 9The plaintiff argued its case on two grounds. The first was stated as follows: