Global Work & Travel v Voss [2025] QCATA 36

• [6] However, shortly afterwards, Voss cancelled her booking. According to her that occurred 3 business days after the booking was made;[3] according to Global she cancelled 6 or seven days later.[4] Bearing in mind that the projected departure date was some 8 months later any difference between the stated cancellation dates seems insignificant.
• [7] According to Voss the reason for her change of mind was recent medical advice concerning herself[5] or a relative[6]. Global expressed some doubt on this point, but no medical certificate was offered or demanded. However, whatever the true reason for Voss' change of plan, the central issue, as the tribunal held, was the question whether the early cancellation was apt to cause any real loss by Global:

What is relevant for my consideration, however, is that the request was made promptly within a very few days of the payment for the arrangement.[7]

• [8] There is no suggestion that Global's refusal of a full refund was determined by the tribunal's acceptance or rejection of the medical excuse, and no such finding was made.

• [9] Global's initial response to Voss' request was as follows:

Your request has been denied [but] we will offer you a refund in credit that you will have two years to use.[8]

• [10] Voss regarded that offer as unacceptable. It may be inferred that Voss had no desire to prolong her relationship with Global.

• [11] According to Voss there followed a compromise offer by Global that was also unacceptable:

[W]e finally get [sic] an offer of 50 per cent cash refund coupled with the balance in [sic] 50 per cent in credit.[9]

[T]here was never an option of a 50 per cent cash refund and a 50 per cent credit provided. It was a 50 per cent credit which was the refund terms as per the terms and conditions. However, as a gesture of goodwill, Ms Voss was advised that we would happily turn into a 50 per cent cash refund instead.[10]

• [13] So that was Global's best offer. As the tribunal found, it was reasonably rejected.
• [14] In the tribunal's view that offer, by an international company to a woman in her early twenties, in the circumstances, was not nearly good enough. As the adjudicator found, bearing in mind that the departure date was still some eight months away, no loss was likely to be suffered by Global - and certainly no loss amounting to one half of the figure paid. Indeed the company was quick to claim that its offerings were in high demand, apt to be snapped up by others.[11]

[Global] is liable to refund the $2,995 together with court costs of $153.70 ... within 28 days of today's order.

• [16] Global now seeks leave to appeal.[12]
• [17] The decision in this case turns upon two ultimate issues. First, whether the final offer made by Global was unconscionable and second, whether it constituted a penalty, as understood in the law of contract. In either case, if established, Global's position would be untenable - as in fact the tribunal held.
• [18] This tribunal is not a court of strict pleading, but it is clear that the parties were well aware of those issues at the hearing. Voss raised them[13] and Global, without any plea of surprise at that stage, joined issue upon them.[14]
• [19] The adjudicator, in finding for Voss, observed:

The cancellation policy, in my view, is unfair in this way: the cancellation charge of 50 per cent of the trip price cannot be a reasonable charge, in my opinion ... [W]here there is little to understand that any actual work has been done, it is impossible for me to say that 50 percent of that price is a genuine pre-estimate of the losses that would be incurred. ... I am satisfied that these was a reasonable basis for Ms Voss to wish to cancel the arrangement. I find that at the time when the cancellation was made, no actual loss has been incurred by [Global]. As I do not believe that the cancellation policy is fair, I cannot accept that that cancellation policy can apply.

Mr Himmelman did make the proper admission that none of the actual steps that would be required had actually been incurred.

• [21] Himmelmann rejected that suggestion, adding more than modicum of promotional rhetoric:

Absolutely not. We've done a lot of - yeah, after, you know, we've done a variety of things. Thirty-nine activities were associated for a variety of different things. Ms Voss spoke to, I think, four or five different team members, starting off with - well, one of our managers reviewed her, so there's - I can see [indistinct] Ms Voss' profile. There'd be a variety of admin - admin and customer service, as well as reviewing insurance policies and for finding the best providers. But Ms Voss was made aware all of this beforehand. This is our stated service. It is quite in depth. We're a premium service provider. Travelling to the other side of the world, dealing with visa regulations and employers is complex stuff. It's not easy to do. And do we charge quite a bit? Certainly, we do. We're not cheap. But the reality is our service speaks for itself.[15]

• [22] Voss was not travelling to the 'other side of the world', but merely to New Zealand - a venture not much more remarkable these days than one of our longer domestic flights. One might wonder why Voss did not arrange it for herself, or through an everyday travel agency, instead of engaging the panoply of administration expansively described by Himmelmann.

• [23] It was open to the adjudicator, as judge of fact and credit, to decline to accept Himmelmann's version. Fact-finding is his prerogative.[16] Applications for leave to appeal are not occasions for a retrial of the merits, but reviews for reasonably arguable legal error.[17] Facts found by a primary judge are seldom disturbed,[18] even where another reasonable view is available, provided that no 'glaring improbability' is apparent[19]. No such error is present here.
• [24] As for the governing law, the tribunal relied on the doctrines of unconscionability and Conduct is unconscionable if it is grossly and manifestly unfair. In the present context 'unfair' is often used as a synonym for the loftier term 'unconscionable', as in the Australian Consumer Law (ACL).[20] However, the ACL expressly recognises the concept of unconscionability as understood in the 'unwritten law'.[21]

• [25] Inevitably 'the selection of what offends conscience is ultimately a matter of judicial policy'.[22] It is no more possible to define with scientific precision the meaning of 'unconscionable" than it is to pin down the exact scope of 'reasonable foreseeability' in the ubiquitous law of negligence. As one judge mischievously remarked: The common law has 'thrived on ambiguity'.[23] However section 24 of the ACL offers a non-exhaustive list.
• [26] A species of unconscionable conduct - or a concept associated with it - is the imposition of a 'penalty' for breach of contract. A penalty clause is one that potentially imposes upon the party allegedly in breach a detriment that clearly and substantially exceeds any reasonable pre-estimate of any loss to the other party.[24] The more onerous the clause the more difficult it is to satisfy a court that it is 'no more than reasonably necessary to protect the proponent's interests'.[25]
• [27] In evidence is a document styled 'Booking Terms and Conditions'. Clause 8 thereof reads in part:

Cancellation charges ... 84 or less days from your tentative date of departure: 100% charge of the trip price.

• [28] As noted above[26] Global eventually offered to accept 50% of the 'trip price', when Voss cancelled about one week after her booking. By that time, as the adjudicator found, Global had done little or no clearly demonstrated work on her project. Whether the "cancellation charge' be fixed at 100% or 50%, it does not sit well with this self-serving statement elsewhere in Clause 8:

You can cancel your trip at any time ... our cancellation charges have been calculated as a genuine pre-estimate of the losses we would incur in the event that you cancel your trip, taking into account the charges we will incur from our suppliers ...

• [29] In the circumstances of the present case it is no surprise that the adjudicator found that Global's treatment for Voss was both unconscionable and a penalty and that accordingly Voss was entitled to a full refund.
• [30] I respectfully agree with the adjudicator's reasons and conclusions. I discern no appellable error in the proceedings at first instance. The application for leave to appeal is dismissed.

[1] Transcript of hearing 19 April 2024 ('T') page 8 line 47 ff (Himmelmann for Global).

[7] Reasons (separately transcribed) page 2 lines 22 ff.

[8] T page 14 line 12. Voss quoting Himmelmann. According to Voss this advice emanated from Global's legal office in Canada.

[10] T page 16 lines 35-40 (Himmelmann).

[11] T page 9, line 44 to page 10 lines 1-7, page 17 line 1 (Himmelmann); page 16 lines 19-22 (Voss). See also statement of defence page 2 (top).

[12] In the interests of finality, leave is required by s 142 of the QCAT Act.

[16] Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 151.

[17] Snell v Morgan [2011] QCATA 316 at [10]; Thompson & Anor v Jedanhay Pty Ltd [2012] QCATA 246 at [28].

[18] Fox v Percy (2003) 214 CLR 118 at 125-126; JM v QFG and KG [1998] QCA 228 at p 20 per Pincus JA; Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479.

[19] Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479. Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167 at 178-179.

[21] ACL s 20 (common law) as well as unfairness within the meaning of statute law: ACL s 2, s 24.

[22] Meagher et al Equity Doctrines and Remedies 2nd edn paragraph 1206.

[23] Esso Petroleum Co Ltd v Harper's Garage (Stourport) [1967] UKHL 1; [1968] AC 269 at 331.

[24] O'Dea v Allstates Leasing System (WA) Pty Ltd [1983] HCA 3; (1983) 152 CLR 359 at [6]; Thomas v Mowbray [2007] HCA 33; (2007) 233 CLR 307 at [22].

[25] Adamson v NSW Rugby League Ltd [1991] FCA 425; (1991) 103 ALR 319 at 341.