Moore v Scenic Tours Pty Limited

[2017] NSWSC 1555

Supreme Court of NSW|2017-11-15|Before: Garling J

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Court

Supreme Court of NSW

Decision date

2017-11-15

Before

Garling J

Source

Original judgment source is linked above.

Judgment (39 paragraphs)

[1]

EX TEMPORE JUDGMENT

The first substantive judgment in these proceedings was delivered on 31 August 2017. For the reasons there expressed, I held that the plaintiff was entitled to judgment: see Moore v Scenic Tours Pty Ltd (No.2) [2017] NSWSC 733 (Moore (No.2)). This judgment assumes familiarity with Moore (No.2). In particular the reference to individual cruises by numbers accords with [13] in Moore (No.2).
The Court was also embarked during the hearing which preceded Moore (No.2) on the determination of identified issues which the parties thought were likely to be common. Those issues were set out in a document entitled "Amended Statement of issues" filed in Court on 13 May 2016.
In Moore (No.2), the parties were directed to bring in Short Minutes of Order setting out the answers to the questions contained in the Amended Statement of Issues for which each contended.
During the course of the hearing on 15 November 2017, and in large measure with the agreement of the parties, the terms in which those answers are to be given were determined.
It is appropriate to now set out those questions and answers given by the Court with respect to the identified common issues.

[2]

What was the nature or character of the "services"' which the defendant was required to supply to the plaintiff and group members? Answer: Scenic Tours Pty Ltd ("Scenic") provided recreational services constituted by a river cruise which included 5-star luxurious all-inclusive accommodation, dining, entertainment and travel by cruise along European rivers and stopping at certain destinations. In addition, Scenic provided information services, in advance and during each cruise, concerning events and circumstances and their impacts upon passengers' enjoyment of their cruises and Scenic's ability to provide its services in a timely manner. Further, Scenic provided management services to oversee, organise and manage the delivery of the cruise and the added services prior to embarkation and whilst the cruises were underway.

[6]

Prior to the embarkation of each of the cruises scheduled to proceed during the relevant period along the pleaded routes, what was the defendant's knowledge (actual, imputed or constructive) of the river levels and other consequences of extensive flooding along the route in question and the extent to which the prospective experience and enjoyment of passengers on each of those scheduled cruises was likely to be disrupted? Answer: Cruise 1: In respect to group members on Cruise FRCR 190513.1, by 16 May 2013, Scenic knew that the cruise which was then sailing north could not establish a final disembarkation point. Waters on the Saone and Rhone Rivers had been very high for most of May. Scenic would have realised that there was a significant likelihood that the cruise due to commence on 20 May 2013 would not be able to proceed smoothly and without interruption, particularly when Scenic had no information to suggest there was likely to be a drop in the height of the Saone and Rhone Rivers. Cruise 4: In respect to group members on Cruise STC 270513.1, Scenic knew by 26 May 2013 that the River Main was closed and that high water was threatening the program for Cruise 2. Cruise 5: In respect to group members on Cruise STC270513.2, Scenic knew by 26 May 2013 that the River Main was closed and that high water was threatening the program for Cruise 2. Cruise 6: In respect to group members on Cruise STC290513.1, Scenic knew of the circumstances affecting Cruises 2-3, after those cruises had embarked (as found in paragraph [485] of Moore (No.2)), and knew of the circumstances affecting Cruises 4-5 before those cruises had embarked (as found in paragraphs [525] and [544] of Moore (No.2)), as at 28 May 2013. Cruise 7: In respect to group members on Cruise STC 290513.2, Scenic knew of the circumstances affecting Cruises 2-3, after those cruises had embarked (as found in paragraph [485] of Moore (No.2)), and knew of the circumstances affecting Cruises 4-5 before those cruises had embarked (as found in paragraphs [525] and [544] of Moore (No.2)), as at 28 May 2013. Cruise 8: In respect to group members on Cruise STC 030613.1, Scenic knew of the circumstances affecting Cruises 2-7 (inclusive), as described in these Answers, before and after those cruises had respectively embarked, as at 2 June 2013. Further, by 3 June 2013, Scenic knew that ships were stuck on the river and were unlikely to move for many days and that a significant component of the cruise would be undertaken as a motor coach tour by land and other cruise companies had formed a view that it was appropriate to cancel the cruise departing at that time Cruise 9: In respect to group members on Cruise EGRC 080613.1, Scenic knew of the circumstances affecting Cruises 2-8 (inclusive), as described in these Answers, before and after those cruises had respectively embarked, as at 7 June 2013. Further by 7 June 2013, the defendant knew that there was no ship to embark upon and that situation was not likely to change in the near future, the high water levels and flooding was unlikely to allow for uninterrupted cruising on the rivers. Cruise 10: In respect to group members on cruise STC 100613.1, Scenic knew of the circumstances affecting Cruises 2-9 (inclusive), as described in these Answers, before and after those cruises had respectively embarked, as at 9 June 2013. Further, by 8 June 2013, Scenic knew that there were significant interruptions to cruising along the rivers: the lock at Hausen on the Main/Danube Canal was closed and it was expected to reopen in a few days but it was not clear when; ships could not sail between Nuremburg and Bamberg in either direction; it would be a week before ships could cruise along the Main River. It was apparent to Scenic that the cruise could not be expected to proceed without significant disruption to the planned itinerary. Cruise 11: In respect to group members on Cruise STC 100613.2, Scenic knew of the circumstances affecting Cruises 2-9 (inclusive), as described in these Answers, before and after those cruises had embarked, as at 9 June 2013,. Further, by 8 June 2013, Scenic knew that there would be no ship in Budapest for embarkation, and passengers would be moved to the nearest ship, docked in Krems, where it had been stuck since earlier in the month. The water level on the Danube continued to be high, the Hausen lock was still inoperative and not expected to be operating for a number of days and the re-opening dates for parts of the Danube and Main/Danube Canal were largely unknown. Scenic knew that there was a real prospect that the cruise would not be able to be completed without interruptions. Cruise 13: In respect to group members on Cruise STC 120613.2, Scenic knew of the circumstances affecting Cruises 2-11 (inclusive), as described in these Answers, before and after those cruises had embarked, as at 11 June 2013. Further, by 11 June 2013, Scenic knew that there would be no cruising between Vienna and Budapest and that there was a real risk of significant interruption to the cruise and that cruising was unlikely to take place in its entirety for the whole of the itinerary.

[7]

Following the embarkation of each of the cruises scheduled to proceed during the relevant period along the pleaded routes, what was the defendant's knowledge (actual, imputed or constructive) of the river levels and other consequences of extensive flooding along the route in question and the extent to which the actual experience and enjoyment of passengers on each of those scheduled cruises had been, was being and would likely continue to be disrupted? Answer: Cruise 2: In respect to group members on Cruise STC 200513.2, Scenic knew by 26 May 2013 that the River Main was closed and that high water was threatening the program for Cruise 2 and that by 28 May 2013, the ship was to have an enforced stay in Bamberg. Cruise 3: In respect to group members on Cruise EGFC 250513.1, Scenic knew by 28 May 2013, ships would soon be unable to pass under a bridge near Frankfurt, due to high water levels. Cruise 4: In respect to group members on Cruise STC270513.1by 30 May 2013, in addition to knowledge of Cruises 2 and 3, Scenic knew that three ships were docked in three locations along the river at Mainz, Bamberg and Krems. By 29 May 2013, it was clear that there was, or was likely to be, a significant interruption to this cruise. The ship upon which the passengers were embarked could not and would not be likely to be able to sail further east past Mainz. Scenic was confronted with the prospect of changing a river cruise effectively to a motor coach tour from a stationary ship with excursions along the way. Cruise 5: In respect to group members on Cruise STC 270513.2, Scenic's knowledge, or knowledge which, acting reasonably, it would be expected to acquire, was the same as for Cruise 4. The one difference was that a successful passage at the western end of the Rhine River was always likely to be more feasible than passage in an easterly direction between Krems and Budapest. By the time the ship was docked in Melk and likely to move the following day only to Krems on 30 May 2013, it was apparent that the other ships on the river at that time were also docked in Bamberg and Mainz, and unlikely to move. Cruise 6: In respect to group members on Cruise STC 290513.1, by 31 May 2013, Scenic knew of the circumstances affecting Cruises 2-5 (inclusive) and that there was a significant prospect that the cruise would not be able to proceed in accordance with the itinerary and that what was in prospect was a motor coach trip through the balance of the itinerary with accommodation provided on stationary, docked ships. Cruise 7: In respect to group members on Cruise STC 290513.2, by 31 May 2013, Scenic knew of the circumstances affecting Cruises 2-5 (inclusive) and that there was a significant prospect that the cruise would not be able to proceed in accordance with the itinerary and that what was in prospect was a motor coach trip through the balance of the itinerary with accommodation provided on stationary, docked ships. Cruise 8: in respect to group members on Cruise STC 030613.1, from 3 June 2013, Scenic knew of the circumstances actually affecting that cruise referred to at [633]‑[643] in Moore (No.2) and in addition those circumstances affecting this cruise that it knew before the embarkation of this cruise, and as well the circumstances affecting Cruises 2-7 (inclusive). Cruise 9: in respect to group members on Cruise EGRC 080613.1 from 8 June 2013, Scenic knew of the circumstances affecting that cruise referred to at [657]‑[664] in Moore (No.2), in addition to circumstances affecting this cruise that it knew before the embarkation of this cruise and the circumstances affecting Cruises 2-8 (inclusive). Cruise 10: in respect to group members on Cruise STC 100613.1 from 10 June 2013, Scenic knew of the circumstances affecting that cruise referred to at [685] and [692] in Moore (No.2) in addition to circumstances affecting this cruise that it knew before the embarkation of this cruise and the circumstances affecting Cruises 2-9 (inclusive) and Cruise 11. Cruise 11: in respect to group members on Cruise STC 100613.2, from 10 June 2013, Scenic knew of the circumstances affecting that cruise referred to at [700]‑[704] in Moore (No.2), in addition to circumstances affecting this cruise that it knew before the embarkation of this cruise and the circumstances affecting Cruises 2-10 (inclusive). Cruise 12: in respect to group members on Cruise STC 120613.1, from 12 June 2013, Scenic knew of the circumstances affecting that cruise referred to at [719] in Moore (No.2), in addition to circumstances affecting this cruise that it knew before the embarkation of this cruise and the circumstances affecting Cruises 2-11 (inclusive) Question 6:

[8]

In respect to each of the cruises scheduled to proceed during the relevant period along the pleaded routes did the content of any or all of the consumer guarantees in ss 60, 61(1) or 61(2) of the Australian Consumer Law require the defendant to warn the plaintiff and group members, prior to them each embarking upon their (respective) scheduled cruises, that there was a real or substantial prospect, or risk, that they would not, or were not, likely to experience or enjoy travel and accommodation by cruise along the rivers covered by their routes, without substantial disruption (hereafter the 'obligation to warn'). Answer: Cruise 1: In respect to group members on Cruise FRCR190513.1, Scenic, acting with due care and skill ought to have informed passengers by 16 May 2013, that water levels on the rivers remained high, and that there was a significant likelihood that this cruise would not be able to proceed smoothly without interruption. By not providing that information, the defendant did not comply with s 60 of the Australian Consumer Law. Cruise 4: In respect to group members on Cruise STC270513.1, there was no obligation upon Scenic to warn, prior to embarkation. Cruise 5: In respect to group members on Cruise STC270513.2, there was no obligation upon Scenic to warn, prior to embarkation. Cruise 6: In respect to group members on Cruise STC290513.1 there was no obligation upon Scenic to warn, prior to embarkation. Cruise 7: In respect to group members on Cruise STC290513.2, there was no obligation upon Scenic to warn, prior to embarkation. Cruise 9: In respect to group members on Cruise EGRC080613.1, the provision of due care and skill by Scenic required the provision, by 7 June 2013, of information about the real prospect of the cruise being significantly interrupted. By not providing that information, Scenic did not comply with s 60 of the Australian Consumer Law. Cruise 11: In respect to group members on Cruise STC100613.2 the provision of due care and skill by Scenic required that, by 8 June 2013 and as an alternative to Scenic cancelling the cruise itself, passengers be provided with up to date and accurate information about the likely interruption to the cruising. By not providing that information, Scenic did not comply with s 60 of the Australian Consumer Law. Cruise 13: In respect to group members on Cruise STC 120613.2, the application of due care and skill required Scenic to notify passengers that there was a real risk of significant interruption to the cruise and that cruising was unlikely to take place in its entirety for the whole of the itinerary. By not providing that information, Scenic did not comply with s 60 of the Australian Consumer Law. Question 7:

[9]

In respect to each of the Cruises 1 and 4-13 (inclusive) scheduled to proceed during the relevant period along the pleaded routes, did the content of any or all of the consumer guarantees in ss 60, 61(1) or 61(2) of the Australian Consumer Law require the defendant to explain or present to the plaintiff and group members options, including opportunity for the plaintiff and group members to take alternative cruises or tours (on subsequent dates), or to offer refunds (wholly or partially) or credits on future cruises as alternative to their proceeding with embarkation upon the scheduled cruises on the scheduled embarkation dates (hereafter the 'obligation to offer options before embarkation')? Answer: Cruise 1: In respect to group members on Cruise FRCR190513.1, the application of care and skill by Scenic required that by 16 May 2013, passengers to be given a choice as to whether they would embark on the cruise or not thereby facilitating cancellation for the passengers. By not providing that choice, Scenic did not comply with s 60 of the Australian Consumer Law. Cruise 4: In respect to group members on Cruise STC270513.1, no. Cruise 5: In respect to group members on Cruise STC270513.2, no. Cruise 6: In respect to group members on Cruise STC290513.1, no. Cruise 7: In respect to group members on Cruise STC290513.2, no. Cruise 8: In respect to group members on Cruise STC030613.1, by 2 June 2013, the only responsible action for Scenic, exercising due care and skill, was to cancel the tour, or else offer an option to cancel the cruise. By not taking that action, Scenic did not comply with s 60(1) of the Australian Consumer Law. Cruise 9: In respect to group members on Cruise EGRC080613.1, by no later than 7 June 2013, the only reasonable course which was open to Scenic, exercising due care and skill, was to cancel the cruise, or at least offer passengers the option to do so. By failing to cancel the cruise, or at least offer that option to passengers, Scenic did not comply with s 60 of the Australian Consumer Law. Cruise 10: In respect to group members on Cruise STC100613.1, by 8 June 2013, passengers ought to have been given the option of cancelling their cruise. Cruise 11: In respect to group members on Cruise STC100613.2, by at least 8 June 2013, the exercise of due care or skill required either the cancellation of the cruise or else passengers ought to have been able to cancel their tour. By not cancelling the cruise, or providing passengers with the option to cancel, Scenic did not comply with s 60 of the Australian Consumer Law. Cruise 12: In respect to group members on Cruise STC120613.1, no. Cruise 13: In respect to group members on Cruise STC120613.2, by 11 June 2013, the exercise of due care and skill required Scenic to offer passengers the option of cancelling a cruise. By failing to provide that option, Scenic did not comply with s 60 of the Australian Consumer Law. Question 7A:

[10]

In respect of the Cruises 2-7 inclusive, scheduled to proceed during the relevant period along the pleaded routes, did the content of any or all of the consumer guarantees in ss 60, 61(1) or 61(2) of the Australian Consumer Law require that after those cruises had embarked, the defendant to explain or present to the group members on those respective cruises the option to cancel their cruises, be offered alternative cruises or tours (on subsequent dates), or to provide refunds (wholly or partially) or credits on future cruises as alternatives to their continuing to proceed with their scheduled cruises (hereafter the 'obligation to offer options after embarkation')? Answer: Cruise 2: In respect to group members on Cruise STC200513.2, no. Cruise 3: In respect to group members on Cruise EGFC250513.1, no. Cruise 4: In respect to group members on Cruise STC270513.1, by 29 May 2013, Scenic, exercising due care and skill, should have provided passengers with an opportunity to cancel the further part of the tour, and make further arrangements. By failing to provide passengers with that opportunity, Scenic did not comply with s 60 of the Australian Consumer Law. Cruise 5: In respect to group members on Cruise STC270513.2, by 3 June 2013, Scenic, exercising due care and skill, should have cancelled the tour. By failing to cancel the tour, Scenic did not comply with s 60(1) of the Australian Consumer Law. Cruise 6: In respect to group members on Cruise STC290513.1, by 31 May 2013, Scenic, exercising due care and skill, should have provided passengers with the opportunity to make a decision as to whether or not to cancel their tour. By not providing that opportunity, Scenic did not comply with s 60 of the Australian Consumer Law. Cruise 7: In respect to group members on Cruise STC290513.2, by 31 May 2013, Scenic, exercising due care and skill, should have provided passengers with the opportunity to make a decision as to whether or not to cancel their tour. By not providing that opportunity, Scenic did not comply with s 60 of the Australian Consumer Law. Question 8:

[14]

(i) obligation to offer options before embarkation; or (ii) obligation to offer options after embarkation. Answer: Cruise 1: In respect to group members on Cruise FRCR 190513.1, Scenic did not comply with the consumer guarantees in ss 60, 61(1) and 61(2) of the Australian Consumer Law. Cruise 2: In respect to group members on Cruise STC 200513.2, Scenic did not comply with the consumer guarantees in ss 61(1) and 61(2) of the Australian Consumer Law. Cruise 3: In respect to group members on Cruise EGFC 250513.1, Scenic did not comply with the consumer guarantees in ss 61(1) and 61(2) of the Australian Consumer Law. Cruise 4: In respect to group members on Cruise STC 270513.1, Scenic did not comply with the consumer guarantees in ss 60, 61(1) and 61(2) of the Australian Consumer Law. Cruise 5: In respect to group members on Cruise STC 270513.2, Scenic did not comply with the consumer guarantees in ss 60, 61(1) and 61(2) of the Australian Consumer Law. Cruise 6: In respect to group members on Cruise STC 290513.1, Scenic did not comply with the consumer guarantees in ss 60, 61(1) and 61(2) of the Australian Consumer Law. Cruise 7: In respect to group members on Cruise STC 290513.2, Scenic did not comply with the consumer guarantees in ss 60, 61(1) and 61(2) of the Australian Consumer Law. Cruise 8: In respect to group members on Cruise STC 030613.1, Scenic did not comply with the consumer guarantees in ss 60, 61(1) and 61(2) of the Australian Consumer Law. Cruise 9: In respect to group members on Cruise EGRC 080613.1, Scenic did not comply with the consumer guarantees in ss 60, 61(1) and 61(2) of the Australian Consumer Law. Cruise 10: In respect to group members on Cruise STC 100613.1, Scenic did not comply with the consumer guarantee in s 60 of the Australian Consumer Law. Cruise 11: In respect to group members on Cruise STC 100613.2, Scenic did not comply with the consumer guarantees in ss 60, 61(1) and 61(2) of the Australian Consumer Law. Cruise 12: In respect to group members on Cruise STC 120613.1, there was no lack of compliance by Scenic with the consumer guarantees in the Australian Consumer Law. Cruise 13: In respect to group members on Cruise STC 120613.2, Scenic did not comply with the consumer guarantee in s 60, although there was no lack of compliance with the guarantees in ss 61(1) and (2) of the Australian Consumer Law Question 9: