Travel Compensation Fund v Internova Travel Pty Limited

Federal Court of Australia|2003-07-02|Before: Bennett J

The applicant's submissions 24 Mr Neil, conceded that the TCF's rights under section 40(3) were 'the claimant's rights, no more and no less' (Travel Guide (at 373)). He asserted that the pleading, for monies had and received, is adequate and pointed to the schedules which provide details of amounts claimed and paid and the fact that the claimant files are available for inspection. 25 Mr Neil maintained that the pleading of money had and received covers a claim for money that has been received by the travel agent as money for the use in the provision of travel services to the claimant. This, he submits, covers any relevant failure of consideration and breach of contract. It was, he said, the failure to provide the services or refund the money that constitutes the failure to account. At one stage of the argument, he identified the failure to account by Internova as the act or omission. 26 Mr Neil, however, later drew a distinction this way: 'It is not the failure to account which was the act or omission …. The failure to account occurred on the crash …….. The act or omission under the law is not that date. It is the continuation of the problem that brought about the crash'. 27 Mr Neil later qualified this statement to state that the failure to account was on or after the crash of Internova.

General Principles 28 The general principles governing pleadings are well known. In BT Australia Pty Ltd v New South Wales [1999] ATPR (Digest) 46-187, at 52, 304, Sackville J stated: 'A statement of claim must show the nature of the applicant's claim and the material facts on which it is based: FCR, O4, r6. FCR O11, r 2(a) provides that the pleadings are to contain and shall contain only a statement in summary form of the material facts on which the applicant relies. FCR O12, r1, requires an applicant to state in the pleading or in a document filed with the pleading any necessary particulars. If a statement of claim discloses no reasonable cause of action or has a tendency to cause prejudice, embarrassment or delay, the whole or part of it may be struck out: FCR, O11, r16.' 29 In Banque Commerciale SA (In Liq) v Akhil Holdings Limited (1990) 169 CLR 279 at 286, Mason CJ and Gaudron J said: 'The function of pleadings is to state with sufficient clarity the case that must be met ….. In this way, pleadings serve to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and, incidentally, to define the issues for decision.' 30 In Multigroup Distribution Services Pty Limited v TNT Australia Limited (1996) ATPR 41-522 at 42,679, Burchett J approved the observations made by Neaves J in The Bega Co-operative Society Limited v The Milk Authority of the Australian Capital Territory & Anor [1992] FCA 261 at pages 15-16: 'The material facts are all those facts necessary for the purpose of formulating a complete cause of action … It is not sufficient that the statement of claim simply express a conclusion drawn from facts which are not stated …;though in some circumstances to plead a conclusion may be to plead a material fact … Not only must all material facts be pleaded but they must be pleaded with a sufficient degree of specificity, having regard to the general subject matter, to convey to the opposite party the case that party has to meet … It must be apparent on the face of the document that the facts pleaded, if proved, would establish the cause of action relied upon … It is not a function of particulars to take the place of the necessary averments in the statement of claim …'

Internova as agent of the claimant 31 Paragraph 15 of the draft amended statement of claim pleads that, in relation to claims made of TCF, TCF assesses claims made by beneficiaries (as defined in the Trust Deed) when a travel agent fails to account and the beneficiary suffers loss as a result of the failure to provide travel services or travel related services. Insofar as the act or omission relied upon is the failure to account for the monies paid to Internova as agent for the claimant, it seems to me that the pleading of money had and received is adequate. However, whether Internova received the monies in this capacity is a material fact to be pleaded with respect to each service. If a respondent wishes to deny that the failure to account was not, in the circumstances of a particular claimant, an act or omission, that is a matter for the defence. 32 TCF has provided information as to the name of the claimant, the amount claimed and the amount paid by the applicant in Schedule A to the statement of claim. TCF has also provided a schedule setting out:

The name of the claimant
Some but not all of the services paid for
The date of payment to Internova
Whether insurance covered the loss
The amount claimed
The amount paid
The date of the payment to the claimant 33 At this stage, it is my opinion that, where Internova acted as agent for the claimant, the respondents are also entitled to have particularised, with respect to each claimant:
the amount paid by the claimant to Internova (if different from the amount claimed)
whether any services were provided for that payment
whether the failure to account was in respect of the whole of the payment or part thereof
whether the payment by TCF to the claimant was in respect of pecuniary loss arising directly from a failure to account by Internova or in relation to any consequential pecuniary loss suffered from a failure to account 34 The schedules provided by TCF contain some of this information and, in the circumstances of this case, it is appropriate to provide the information in schedule form. As I have noted, I was informed that all of the files are available for inspection.

Internova as agent of another 35 TCF has, however, pleaded in paragraph 109 of the draft amended statement of claim that 'Internova received monies from or on behalf of the Claimants' for the future provision of travel services. Mr Whitford makes the point: "If the agent is the agent of the carrier to receive the money, there can be no failure to account" by the agent. I asked Mr Neil if it were alleged that monies were received by Internova as agent for the claimant but he declined to limit the relationship to one of agency. In considering the question of agency, Mr Neil said that the travel agent could be the agent for the customer but was 'almost certainly agent for the service provider'. Similarly, Mr Whitford said that the travel agent 'may be the agent of the claimant. They may be the agent of the carrier'. It may be that some of the monies were received by Internova as agent for a travel arrangement provider. This raises the question of whether there can have been failure to account. A simple pleading of monies had and received is not sufficient in this case. The capacity in which Internova received money from each claimant is a material fact and should be pleaded. If the money were received as agent for another party, TCF should also identify that other party and the services to which payment related. The respondents can not know from the pleading what monies were received in this capacity. To the extent that monies were received as agent for another, those monies must be identified. If TCF claims that, for some reason, Internova was liable to account for those monies and that there was an act or omission on the part of Internova in relation to them, the material facts should be pleaded.

Acts or omissions alleged 36 Mr Whitford relied upon Travel Guide to assert his right to a more detailed pleading with respect to each claimant's claim. Clause 15 of the trust deed previously in effect and relevant to that case, however, referred to a payment made 'by reason of an act or omission' by the travel agent before the trustees paid the claimant. That is not the case here, where the Trust Deed refers to a 'failure to account'. Mr Neil stated that the failure to account occurred 'when the company crashed and that's when the services were not provided'. Where that is the act or omission relied upon, the pleading is, in that regard, sufficient. 37 A failure to account can be characterised as an act or omission for the purposes of section 40 and it may be this particular act or omission for which the claimant was paid under the Trust Deed and in relation to which the trustees are subrogated. Section 40 requires TCF to prove that the payment made to the claimant under the compensation scheme was a payment made because of an act or omission of the travel agent and not simply that payment was made. A claimant may have failed to receive the benefit for which he/she had paid by reason of an act or omission of, for example, an airline or a tour operator or not by reason of an act or omission of the travel agent. There may be, however, other acts or omissions of the travel agent relied upon that go beyond a failure to account. If so, the material facts must be pleaded. 38 If the Act provided that the trustees were entitled to be indemnified for any payment made out by TCF to a claimant, there may not be a problem. However, this is not the case. The liability of a director is linked to that person being a director at the time of the act or omission; the defence available is linked to a lack of knowledge of the occurrence of the act or omission. Add to this the fact that different respondents were directors at different times and that they may wish to deny knowledge of a particular act or omission and the difficulty faced by the individual respondents in understanding the case to be met becomes apparent. The act or omission pleaded purports to be a single occurrence. If that is the case, it shold be made clear. If not, the pleading is inadequate. 39 It would seem, further, that the failure to account is not the only act or omission relied upon by TCF in its case against Internova and its directors. Mr Neil spoke of "a failure to make provision". He said that TCF's case against the directors involved "conduct throughout of failing to preserve the money is a continuing act or omission" on the part of the directors. This is not a cause of action based on money had and received. The material facts should be pleaded. In paragraph 109B of the amended statement of claim, it is alleged that Internova "committed an act or omission by way of failure to take steps to ensure" that obligations could be met or money refunded. TCF claims that rights in respect of those failures are enforceable against the other respondents in respect of the times they were, or acted as, directors of Internova. 40 The question I am asked to consider at this stage is not whether the directors are liable to TCF but whether the pleading of the allegations against Internova and those directors who filed the notices of motion is liable to be struck out. The claim against the second to ninth respondents repeats the claims against Internova and then claims rights against those respondents by reason of the Act. 41 The draft amended statement of claim pleads an act or omission by Internova in paragraph 109B, which is said in paragraph 109C to have taken place between 20 September 2001 and 26 November 2001 and another act or omission in paragraph 114A. There are not sufficient material facts pleaded to link those allegations to each claimant and the failure to account to that claimant. The respondents cannot, for example, know from the pleading what obligations accrued and when or what monies had been received at different times for which provision should have been made. Similarly, they cannot deal with an allegation that they have not taken steps to ensure that obligations to provide travel services could be met when there is no reference to the extent of the travel services to be provided, nor the timing of such provision. This is in circumstances where, with respect to the ninth respondent, it is only alleged that he was or acted as a director from 8 October 2001 to 23 November 2001, while the pleading states that the act or omission took place between 20 September 2001 and 26 November 2002. 42 In circumstances where the counsel for TCF states that the liability of the directors of Internova is based upon a failure to make provision, it does not seem unreasonable that the director respondents know for what they were to make provision and at what times, bearing in mind the fact that the respondents were directors for different periods of Internova's operative period. 43 While TCF asserts that the failure to account was when Internova ceased operating, that does not necessarily mean that the acts or omissions that resulted in that failure to account were coincident with it. If that were the case, it would be easy so to specify in the pleading.

conclusion 44 The pleading in respect of the claims against the respondents arising under the Act, fails to plead material facts, discloses no reasonable cause of action appropriate to the nature of the pleading and has a tendency to cause prejudice, embarrassment or delay in proceedings (Federal Court Rules, O 11 r 16(a)). In the circumstances, it is appropriate to strike out paragraphs 109 to 117 of the draft amended statement of claim. Although some individual paragraphs in this section of the pleading do not suffer from the deficiencies identified, this section of the pleading can be considered as a whole. 45 The applicant should be permitted to replead. I will hear submissions from the parties at the next directions hearing on costs and as to the status of the pleadings with respect to those respondents other than the third, fourth and ninth respondents.

Orders 46 I make the following orders: 1. Paragraphs 109 to 117 of the draft amended statement of claim are struck out as against the third, fourth and ninth respondents. 2. Leave be granted to the applicant to replead those parts of the pleadings that have been struck out. I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Counsel for the Applicant: M Neil QC with N Francey Solicitor for the Applicant: McCabe Terrill

Solicitor for the First Respondent: Nash O'Neill Tomko Lawyers

Counsel for the Second Respondent: D Williams Solicitor for the Second Respondent: Foley's Lawyers

Counsel for the Third Respondent: D Studdy Solicitor for the Third Respondent: Foulsham & Geddes

Counsel for the Fourth Respondent: R Gye Solicitor for the Fourth Respondent: Greg Judd & Associates

Counsel for the Sixth Respondent: P Taylor SC with T Bartush-Peek Solicitor for the Sixth Respondent: Cameron & Myers

Counsel for the Seventh Respondent: P Taylor SC with T Bartush-Peek Solicitor for the Seventh Respondent: Cameron & Myers

Counsel for the Eighth Respondent: P Taylor SC with T Bartush-Peek Solicitor for the Eighth Respondent: Cameron & Myers

Counsel for the Ninth Respondent: P R Whitford Solicitor for the Ninth Respondent: Coudert Brothers

Date of Hearing: 16 and 18 June 2003

Travel Agents Act 1986(NSW)

the ninth respondent'S SUBMISSIONS 19 Mr Whitford submitted that it was necessary for TCF to plead the material facts which identify the rights which individual claimants possess against Internova and to identify the causes of action that relates to each claimant. He identified a requirement for TCF to plead the arrangements between the individual claimant and the travel agent that gave rise to the claimant's rights, to which the trustees are subrogated. Mr Whitford relies upon the nature of the subrogation rights for the Compensation Scheme Trustees as giving rise to this pleading requirement. In particular, in his written submissions, he points to the effect of subsections (3) and (4) of section 40 to this effect: '5.2 Under sub-section 40(4) where the rights conferred by sub-section 40(3) on the compensation scheme trustees are exercisable against a body corporate, those rights are enforceable jointly against the body corporate and the persons who were its directors at the time of the act or omission and severally against the body corporate and each of those directors. … 5.5 Section 40(3) of the TAA assumes a payment is made to a claimant under the compensation scheme "by reason of an act or omission by a person carrying on business as a travel agent". Where a payment is made in that circumstance the compensation scheme trustees are subrogated to the rights of the claimant in respect of "the act or omission". Under clause 15.1 and 15.2 the Board must or may, in the circumstances there described, pay compensation out of the fund to a person who has suffered or may suffer loss arising "from a failure to account by the participant for money or other valuable consideration paid by the person".' (Original emphasis) 20 Counsel submits that the draft amended statement of claim does no more than allege as a fact that TCF has paid the claims reflected in Schedule A and assumes that that fact alone gives rise to some entitlement. No basis in the Act or the Trust Deed for such an entitlement is identified. 21 Mr Whitford submits that there is no inevitable correspondence between the amount of any payment made by TCF to a claimant and the remedy to which infringement of a particular right of a claimant gives rise to. He submitted that, for each claimant, the material facts must be pleaded to establish that: (a) the claim was properly payable under the Act or Trust Deed; and (b) the claim was paid by TCF. The relevant act or omission that gave rise to the obligation to pay must also be identified. 22 Counsel also relied upon a decision of McClellan J in Travel Compensation Fund v Blair [2002] NSWSC 1228 ("Blair's case")in respect of subpoenae, and the history of that matter. It would appear that the TCF had compensated many persons who had booked and paid for travel and accommodation before the collapse of Ansett Australia Ltd or Traveland Pty Ltd. Instead of continuing the proceedings as they were originally pleaded, McClellan J directed that a number of test cases be identified and commenced, each being separately pleaded. 23 It is not clear from McLellan J's reasons in Blair's case exactly what had been pleaded and particularised in the test proceedings. It would seem that the claims were for money had and received but that breaches of the agreement between the particular claimant and the travel agent were also pleaded.

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