Ueda & anor v Ecruising Pty Ltd and Southern Cross Safaris Australia Pty Ltd

NCAT Consumer and Commercial|2013-12-10

THE APPLICATIONS AND EVIDENCE SUMMARY 1On 30 July 2013 the applicants, who are husband and wife, each filed applications seeking compensation in the sum of $20,184.85 from the respondents. 2The applications outlined that the applicants had purchased a luxury "Migration" tour in Africa to take place in April 2013, and that the tour as advertised was not delivered.

The Proceedings 3These two applications were heard with those of two other separate applicants who participated in the same tour. Those applications have slightly different issues and separate reasons for those applications will be provided. 4Leave was however given for Mrs Judith Ueda to represent all applicants. 5At the first hearing on 28 August 2012, conciliation with a conciliator was unsuccessful, and procedural orders were made, requiring the parties to provide copies of documents to each other and the Tribunal on a timetable. 6The parties provided such documents and they will be referred to in the evidence summary hereunder.

The evidence on behalf of the applicants 12Both respondents are corporations registered and based in New South Wales. The first respondent is the tour company with which the applicants dealt, and the second respondent is the operator of the African portion of the tour. The tour included airfares from Australia to Nairobi in Kenya, via Dubai, and a return fare from Africa via Dubai to Australia, with an overnight hotel stay each way. There was essentially a land component of the tour in Kenya, Tanzania and Zanzibar, from 12 April to 26 April inclusive, totalling 15 days. 13Each applicant in their documents provided a summary of the claim, a copy of all the e-mail correspondence leading up to the tour (and during and after the tour), the brochure and itinerary, and information from government and tourism websites in Africa. 14Each applicant's claim was summarised as follows: "I booked a tour with Ecruising Pty Ltd [described as] '2013 QM2 and Migration Tour' without the cruise component. Deposit was paid on 27 February 2012 with the balance on 8 November 2012. Total $20,184.85. The tour did not meet my expectations and the advertised "unparalleled once in a lifetime opportunity" was not delivered. The itinerary was poorly planned and impossible with regards to distances to be travelled in a day. The hazardous condition of the roads in the rainy season had not been taken into consideration. Other parts of the itinerary did not eventuate. The tour was timed for the wet season and therefore we were plagued with tstse flies, mosquitoes and sandflies. Advertisements gave the overall impression that we would see the migration. Other statements were deceptive and misleading. The impression created in the advertisements did not reflect the reality and therefore the expected enjoyment of a wonderful tour was not experienced. Services provided by Ecruising Pty Ltd were not rendered with due skill and care. I had relied on the skill and expertise of Ecruising Pty Ltd as a travel agent to provide me with a product I had purchased. The expected luxury safari with its very long days, missed meals and physically and mentally challenging itinerary left me stressed and fatigued but most of all extremely disappointed that I was not able to see the advertised migration. It will now be necessary to go to great expense again to view this phenomenon and therefore I claim the amount of $20,184.85." 15The documentation provided by Mrs Judith Ueda is the same as that for her husband. Mrs Ueda's documentation has numbered Appendices and is tagged, and will be referred to throughout in relation to both applications. 16The applicants had previously travelled with Ecruising, and the previous year had participated in an Ecruising safari to Kenya. They knew the chairman and director of Ecruising, Mr Brett Dudley, personally, and e-mailed him in February 2012, following a general e-mail from Ecruising on 12 January 2012 titled, "This week's great deals from ecruising.travel + QM2 Migration tour." [Tribunal's underlining] 17It is common ground that "QM2" refers to the Cunard ship Queen Mary 2, a luxury cruise liner. That e-mail is Appendix 3. 18Parts of that e-mail are as follows: "First up, is our exclusive 2013 safari which has been a long time in the planning and has been surely worth the wait!" It goes on to document the cruise starting in Sydney and eventually arriving in Cape Town, South Africa, on 9 April 2013. It then refers to passengers flying to Nairobi, where there is a further short flight to commence the land portion of the tour. The e-mail proceeds, referring to Masai Mara, which has, a luxurious tented camp, with three nights and morning and afternoon game drives. Following this it refers to a flight eventually arriving in Tarangire Treetops Lodge in Tarangire National Park for a further three nights, then a further three night stay at Ngorongoro Crater Reserve (the Manor). Following this, there is a drive to Serengeti National Park, with a further three nights in the Serengeti Migration Camp. This camp is also referred to as having luxurious elevated tents, and the description continues: "After lunch, you will join your first of many game drives through the famous Serengeti plains. . . .. On the final day, take a guided pre-breakfast game walk on the banks of the Grumeti river, home to Nile crocodiles and the point of river crossing during migration (it will be the start of the migration season so keep an eye out!)." [Tribunal's underlining] Following there is a transfer by air to Zanzibar. Towards the end it is stated "Limited to 24 places, we only have 12 left, so from $21,909.00, you will need to be quick or miss out on this unparalleled, once in a lifetime experience." [Tribunal's underlining] 19It appears that a link following this paragraph provided complex pricing details, and dates with brief details of the land portion of the tour (Appendix 4), which the applicants downloaded on 17 February 2012. 20The applicants commenced an e-mail correspondence directly with Mr Dudley from 23 to 24 February 2012, with amendments to the tour being made up to and including 19 March 2013. (Appendices 7a to 10 d). 21In the course of that, Ecruising forwarded on 24 February an outline of the itinerary and costings, resulting in the applicants paying for their separate tickets in a combined payment on 27 February 2012. It was agreed that the applicants would not participate in the cruise section, but would fly from Australia to Nairobi, meeting the other tour members on 12 April 2013. It is noted that the costings information at the end, in paragraph number 2 of 18, that there is a reference to reading the terms and conditions online (with a link) but it would appear this link refers to only payment, payment times, and consequences of non-payment, such as cancellation fees. It appears that under certain conditions the deposit would be forfeited if the applicants cancelled. In any event, if it read otherwise, it is not in evidence. 22These applicants gave evidence that, having already done a Kenya safari (with the first respondent), they were particularly looking forward to now seeing what is known as "the great migration", although this does not appear to be mentioned in any of the above e-mails, only their pleasure at the previous trip, and that they would now like to visit other places in Africa, referred to in the 2013 trip (as set out in the 12 January advertising e-mail above -- Appendix 3). 23At the commencement of their enquiries, and prior to their actual payment of the deposit of $5,050.00 (in total for both) on 27 February 2012, no formal brochure with a description of the tour had been issued. It seems it was issued sometime in March 2012, and the applicants downloaded their copy (or it was sent to them) on 14 March 2012. 24The brochure is titled "2013 QM2 and MIGRATION", and was issued by Ecruising. (Appendix 5b) It had a number of photographs on the front, the largest featuring a herd of wildebeest, and a large stylised representation of the Queen Mary 2. Under "Inclusions" on page 2 were set out the 15 days of the land component, as well as the surrounding attractions for the boat passengers, and return flights. 25In small print at the bottom of this page is a dot pointed paragraph, which states at the beginning: "Commencement of the gathering of the animals before the migration is subject to weather conditions. . . . All prices and itineraries are current at time of publishing and subject to change without notice." [ Tribunal's underlining] There were also warnings in this paragraph about currency fluctuations and taxes at time of publication being subject to change, as well as prices varying until full payment is received. 26Then followed 12 pages of detailed descriptions of what would be seen, together with photographs. Under a heading "The Migration" is the same photograph of a large herd of wildebeest as on the front cover page. 27In a detailed description of the Masai Mara National Park (for 13, 14 and 15 April), at page 6, the brochure states: "The Masai Mara is fabulous for seeing big cats, and their prey and all the big five. It is also the stage for the greatest show on earth -- the wildebeest migration. From around July to October grunting herds of wildebeest and a zebra cover the plains, often crossing the river between Tanzania and Kenya, attended by crocodile, lion and cheetah . .. Experience first hand the sheer scale of the annual wildebeest migration across East Africa." [ Tribunal's underlining] 28On page 2 of the brochure (for 23, 24 and 25 April) it is mentioned, "Over the next two days we will enjoy morning and afternoon game drives in the endless plains of the Serengeti where we may have a chance to see the great herds of wildebeest, zebras and gazelles or a pride of lions lounging in the shade. Both days will include a specially prepared bush lunch." [Tribunal's underlining] 29At page 9, under the heading, "Migration Camp, Serengeti National Park" it goes on to state: "The Serengeti -- magnificence beyond belief. Internationally renowned for the greatest wildlife spectacle on the planet. The Serengeti National Park is the ultimate wildlife show on earth. The annual migration of hundreds of thousands of animals has been documented by authors and filmmakers across the globe, but there is still only one way to understand and experience the true magnificence of this natural phenomena and that is to be part of it. Serengeti Migration Camp is the embodiment of the camp experience... Serengeti Migration Camp has become synonymous with low impact high action game viewing in a landscape that is untouched since the dawn of time. Hidden among the rocky outcrops Migration Camp is located at the starting point of the migration." 30A description of the camp itself then continues, with that page finishing as follows: "But it is the drama and proximity of the wild which takes the experience of this camp to an altogether higher level. Whether it be walking safaris with experienced and highly knowledgeable guides or the sensation of being as close to nature's daily fight for survival, the sensory feast that accompanies any visit to Migration Camp will no doubt rival anything experienced before." On the page at the end with the pictures it is said, "Take a look at just some of the sights on offer during this once-in-a-lifetime opportunity." [Tribunal's underlining] 31As noted, the applicants paid the balance of their deposit in November 2012, and transferred by air from Australia, arriving in Nairobi on 12 April 2013. 32In their documents the applicants then set out, over 19 pages of chronology with photographs, the problems from that day onwards that the tour encountered. 33Following the return of the tour to Australia, some tour participants contacted Mr Dudley via e-mail in May 2013 expressing their unhappiness (Appendix 11c) on 28 June 2013. These applicants wrote to Mr Dudley expressing a number of problems with the timing and the itinerary, and basically setting out that they did not see what was promised, or near that (Appendix 11a). Mr Dudley replied on 4 July 2013 stating he was disappointed that they had not talked to him first, and saying that essentially the tour company had used their best expertise to put this tour together. He explained that the tour was in April because of the date of the Queen Mary 2 arriving in Cape Town (that is, 9 April). He mentioned that he had put the tour together with Bench International (which is the business name of the second respondent), and that he had told the second respondent that this was a high standard tour, and his tour party only wanted the best. 34Mr Dudley also attached the brochure referred to above, and referred in particular to the paragraph on page 2, set out above, referring to the commencement of the gathering of the animals before the migration being subject to weather conditions. He stated, "Commencement being the operative word." [Tribunal's underlining] 35There were a range of other problems that the applicants and others raised, including that Mr Dudley and his wife Philippa did not accompany the tour, which had originally been represented. Mr Dudley apologised for this, but said that he had sent instead their business development manager, Mr Ellis, to accompany the tour. 36He concluded in this e-mail, "I agree things may not have gone as well as they could have because of the weather, however Africa is a place of change, one of weather and of nature, something we have no control over." He emphasised that he was offended that it had been suggested that there had been deceptive advertising and that the participants were misled. He denied that a full refund would be offered (nor apparently any refund). 37The first part of the applicant's case was however that they had subsequently found out that April is the wettest month of the year in Tanzania (the month when most of the tour took place) and that all the official websites, both government and for tourism in Tanzania, recommend tours taking place in all months except April. 38They asserted in the second part of their case that their documentation also showed, in Appendices 12 to 15c, that April is the least likely month to see the migration in either Masai Mara National Park or the Serengeti National Park. They also submitted that the documentation submitted by the second respondent supported their case. 39The maps show that the Masai, or Masai Mara (through which the Mara River flows) is largely in Kenya, on the northern border with Tanzania. The maps show that the Serengeti Migration Camp is in the far north of the Serengeti National Park, on the Grumeti River. The Serengeti National Park northern section is some distance south-east of Masai Mara, and is in northern Tanzania. The Ngorongoro (or Ngorogoro) Crater Reserve is at the southernmost end of the Serengeti National Park, in Tanzania. The Tarangire National Park is separate, and further to the south again, in Tanzania. 40The applicants referred to appendix 13a, which is a map produced by the Elewana Collection, for the Serengeti Migration Camp, showing "the migration" of the herds. The Elewana Collection owns the majority of lodges or camps where the tour party stayed. The applicants pointed out that this Serengeti National Park map puts the migrating herds in April nowhere near either Masai Mara or the Serengeti Migration Camp, hundreds of kilometres to the south. 41Their first reference (at Appendix 12) is to the summary of "The Great Migration" in Wikipedia. The effect of the Wikipedia summary is that after the rains end in May, the herds move to around the Grumeti River until July, when the main migration of wildebeest, zebra and eland heads further north [towards the Masai Mara] for the dry season, and in early November they start moving south again, arriving in the south-east in December, for calving in February. 42In more detail, the map of the migration produced by the Elewana Collection puts the herds in March in the southern Serengeti and near the Ngorongoro Conservation Area, with those herds migrating north in April, in none of the places where the tour was visiting or staying. Specifically that map places the migration crossing the Grumeti River in July, moving through the north of the Serengeti National Park in August, and in the far north of the Serengeti and Masai Mara in September and October. 43In a current article by the director-general of Tanzania National Parks, downloaded by the applicants in September 2013, discussing the Serengeti, Ngorongoro and Masai Mara, he says (Appendix 13b): "It is the migration for which Serengeti is perhaps most famous. Over 1 million wildebeest and about 200,000 zebras flow south from the northern hills to the southern plains for the short rains every October and November, and then swirl west and north after the long rains in April, May and June. So strong is the ancient instinct to move that no drought, gorge or crocodile infested river can hold them back." [Tribunal's underlining] On the Serengeti National Park website the weather in March to May is described as, "long and heavier rains". 44The applicants downloaded current information (as at September 2013) from the website of the second respondent, (that is, from Bench International) at Appendix 13d. On the website of Bench International under the description of "The Migration" it is stated, "April -- heaviest rainy month. The wildebeest herds are now scattered on the short grass plains". 45There then continues a description referring to the herds crossing to the central Serengeti in May, and then stating, "June -- rains come to an end and the herds head across the Grumeti River where many wildebeest drown every year providing food for the crocodiles who lurk at crossing points."It then continues, referring to the herds scattering across the Grumeti River and in July, "Other large herds stay along the Grumeti River moving towards Serengeti Migration Camp ". 46In a further reference to Serengeti National Park from the Bench International website, it is stated, " Best time for the migration from December to May in the south of the park and from June to October in the western corridor and to the north". [Tribunal's underlining] The map provided by Bench International on that website clearly supports that description. 47Under the Ngorongoro Conservation Area on the Bench International website it is stated, "Best Time: whole year -- rainy season in April". All the best times to visit in the other areas mentioned on that website do not include April. 48The website of Africa Travel Resource (Appendix 15b), apparently an official Africa tourism website, states "Due to varying weather conditions and other such factors, the migration can differ in each location at any time of the year. However a general prediction for the migrating pattern month by month can be summarised as follows: ... In March the migration is now spread across southern Serengeti, Loliondo and the Ngorongoro Conservation Area. In April the migrating herds start moving north through the areas of the Moru Kopjes and Seronera. In May the migration heads north through Seronera towards the western corridor. In June the migration collects in the area of the western corridor before crossing the Grumeti river. In July the migration continues to cross the Grumeti River and across the Grumeti reserve.. . ." 49The tour did not visit Loliondo, the Moru Kopjes or the Seronera. The website of Africa Travel Resource, referring to the period from 1 March to 20 May clearly states: "At this time the wildebeest migration should be far off to the south", and further, "Once significant rainfall has fallen the game may be quite dispersed and difficult to find". 50Reference will be made below to the documentation submitted by the second respondent (described as as Bench International), however it is relevant to mention that after the information provided by the second respondent regarding the wildebeest migration, the second respondent provided a map downloaded from Tanzania wildlife safaris, headed, "migration of the wildebeest". That map essentially confirmed the course of the migration given by Africa Travel Resource, and the Elewana Collection map. The Bench International map places the herds in the south-east corner of the Serengeti National Park from December to the end of May, in the areas of the Moru Kopjes and Seronera mentioned above. That map has the Ngorogoro Conservation Area further to the south again, and in fact south of the migration route in December to May. 51There is no dispute between all parties that exceptionally heavy rainfalls occurred in East Africa in late March and early April 2013. 52Apparently shortly prior to April 2013 the first respondent forwarded a more detailed itinerary prepared by the second respondent, described in that itinerary as Bench International (Appendix 16). This itinerary was forwarded to all the members of the tour party noted on the second page of that itinerary (12 in all). The first paragraph on the first page, describing the itinerary, referred to the annual migration of wildebeest and zebra between the Serengeti National Park and the Masai Mara game reserve, referring to it as one of the world's most remarkable sights. The only other paragraph in that summary referred to the features of Zanzibar, and then the itinerary went on to detail the tour places, with descriptions, from 12 April 2013 through to 29 April 2013, when the tour checked out of their hotel at Zanzibar. This itinerary thus dealt with the land component. 53On Sunday 14 and Monday, 15 April 2013 that itinerary states: "Enjoy morning and afternoon game drives in the famous Masai Mara game reserve and surrounding areas. The Masai Mara is legendary for its abundance of wildlife. This is "big five" country all year round". 54The period 22 April to 25 April 2013 refers to the stay at the Migration Camp next to the Grumeti River, for three nights. On 23 and 24 April the itinerary states: "Enjoy morning and afternoon game drives in the endless plains of the Serengeti for a chance to see the great herds of wildebeest, zebras and gazelles or prides of lions lounging in the shade. Lunch is enjoyed in the bush." [Tribunal's underlining] 55This was the only document provided by the second respondent, through the first respondent (for which it is stated it is prepared) to the tour party. 56The applicant also provided large portions of the blog from Mr Brad Ellis, the business manager of the first respondent who accompanied the tour throughout. The first respondent provided no further parts of Mr Ellis's blog. It is significant for there being no blog on 16 and 17 April, when the tour party's vehicles were largely bogged. For Mr Ellis this was the first time he had been in Africa, and he is rightly enthusiastic describing all the sights that were seen. 57In his blog Mr Ellis certainly notes sighting a range of wildlife, but the applicants pointed to their being no mention of seeing any large herds of wildebeest or zebra, nor are there any photos from him showing any herds. There is no mention as to any migration of any of these herds. Mrs Ueda under questioning by Mr Dudley conceded that some herds of animals were seen in the Ngorongoro Conservation Area, but the evidence is that this is a crater area, and the herds do not apparently migrate either into or out of that area. This appears to be supported by the Bench International map, placing that reserve to the south of the migration itself. 58As noted, the applicants' evidence also consisted of a 19 page chronology of the itinerary. For the purposes of these reasons it is only necessary to refer to it in some areas, although it is very comprehensive, with illustrative photographs taken at the time. 59The applicants on page 8 of the chronology set out the complete absence of any migrating animals at the Masai Mara over 13 to 16 April, with supporting photographs. Because no animals were seen in the early morning, the African guides decided to travel further, which resulted in eight hour days, whereas the usual game viewing in Africa takes place early in the morning or late in the evening. As noted, because of this change in arrangements, luxury lunches at the camp did not occur. 60It is noted that on 18 April ten members of the group had an informal meeting with Mr Ellis, outlining their concerns that it appeared that they would not be able to see the migration at all, and problems with the standard of the tour. The applicants noted that Mr Ellis seemed to be unaware that the tour party expected to see the migration. He was asked to contact Mr Dudley but there was no apparent response from Mr Ellis. Mr Ellis was not called as a witness. 61On 12 to 15 April 2013 at the Masai Mara game reserve, as confirmed in Mr Ellis's blog, there were only small groups of wildlife to be seen, and no herds of wildebeest or zebra. 62The real problems outlined in the chronology came on 16 and 17 April when, because of the previous heavy rains, and the regular overnight rain, timetables for vehicle travel were totally thrown out, and the two vehicles became heavily bogged on two occasions. On 17 April the game viewing was washed out because of the weather, and the difficulty of road travel, despite this being allocated as a full day of game viewing in the Tarangire National Park. On 22 April, as part of a 10 hour drive to the Migration Camp in the Serengeti, the applicants conceded under questioning that they saw some small herds of wildebeest with calves, but their guide explained at the time that this was not the migration. Because of the road difficulties the luxury lunches at various places had been cancelled. The applicants' photographs on that day confirm that not many wildebeest were seen. As noted, nowhere in Mr Ellis's photos are there any herds shown. 63At the Serengeti Migration Camp on 23 to 25 April, because the African guides found very little wildlife near the migration camp, on the second day the tour undertook a 10 hour return drive to an unexplored section of the park, to try to find herds, without success. The game viewing on the previous day, and the day following, also revealed no migratory herds. The photos taken of the Grumeti River indeed show a completely undisturbed river and no wildlife at all. 64Pages 8 to 15 of the chronology set out some criticisms of some of the accommodation, particularly at Zanzibar, and the lack of wildlife seen at most if not all of the game reserves. In particular is a photograph from the Serengeti Migration Camp website of vast herds of wildebeest entering the Grumeti River, which it is clear were never seen at any stage of the tour. 65The chronology also refers to the tour party being plagued with mosquitoes and tse tse flies whose bites were painful and remained on the skin until their return to Australia. There was also significant criticism of the level of accommodation in Zanzibar, and overall it was pointed out by the applicants (and supported in the evidence) that there were very few other guests staying at any of the hotels, lodges or campsites which the tour visited, noting that these were all major high standard accommodation premises. 66Finally it was noted that the balloon safari which took place over one morning resulted in the tour party seeing virtually no animals over the very large plains, and photos confirm. 67Under questioning by Mr Dudley, Mrs Judith Ueda conceded that certainly two members of the tour party (statutory declarations provided by the first respondent) were enthusiastic about the tour and thoroughly enjoyed it. Mrs Ueda did not disagree with their view, but pointed out that couple were also in Africa for the first time, as opposed to the remainder of the tour, in particular the applicants, who had been to Africa on at least one previous occasion on safari tours, and were looking forward, in particular, to seeing the actual migration, at some stage of the tour. 68Mrs Ueda also conceded that only one day was actually washed out through rain, and that most of the rain that fell during the tour itself, fell overnight. 69Mrs Judith Ueda said that that neither applicant had seen the conditions in small print referring to the gathering of the animals and the weather at the bottom of the first page of the brochure, but reiterated that the applicants had relied on the high level of skill and judgement as represented by the respondent. 70In this respect the applicants in their documents referred to the following representations by the first respondent as to care and skill contained in the documents submitted prior to the tour by the first respondent: "The hallmark of Ecruising is professionalism" "We pride ourselves on exceeding expectations" (both of the above from the first respondent's brochure - Appendix 5b, and also Appendix 20) "An exclusive 2013 safari" (from the e-mail 12 January 2012) 71The Tribunal also notes on the top of every page of the brochure, the first respondent is described as, "Australia's leading cruise travel agency". 72In the course of the applicants evidence they stressed that the tour guides and support staff throughout had all been excellent, had worked hard to look at alternatives when difficulties arose, and they had no issue with the guides in Africa. All of these were employed by the second respondent, Southern Cross Safaris, known as Bench International. 73Each applicant claimed that, since the main purpose of the tour, the migration, had not eventuated, and was likely never to have eventuated on this tour, they would have to go to the same expense to view this phenomenon again. They claimed the amount that they had paid for this tour, in the sum of $20,184.85, and provided a quotation for a migration tour from another company, as a comparison, for nine days, for a total cost of $10,650.00.

The evidence on behalf of the respondents 74Mr Dudley, on behalf of the first respondent, Ecruising, emphasised in the summary which he provided with his documents, that Ecruising's position has always been that the product provided for was delivered. He stressed that the components of the tour such as the flights, hotels and the tour itself were delivered, however he in effect asserted that the expectations of the applicants may have been too great, or misplaced. He acknowledged that as a travel agent he is dealing with peoples "dreams" or "bucket lists" and that his tour operators always do all they can, within their control, to make those dreams come true. He more or less conceded that in this case the dreams had not come true. 75He pointed out that the he and his company are experienced travel operators, and that 90% of his tour participants, in his view, return for further tours. He has been a travel agent for fourteen years, and Ecruising has been in the business for eight years. During this time their cruise tours had carried many high profile passengers, including past Australian prime ministers. He said that, commencing two years before this tour, he had checked the ground operations, in conjunction with the second respondent, whom he had been working with for years. 76He stressed that the documentation and brochures were not designed to deceive at all, and that all travel in Third World (developing) countries, including Africa, never necessarily goes to plan. He believed that, as situations arose on the tour, they were dealt with appropriately by his representative Mr Ellis, and the ground operation teams of the second respondent. 77At the initial hearing/conciliation in August 2013, which hearing (but not the conciliation) had coincidentally been conducted by this member, it was raised with the first respondent whether the first respondent had provided the applicants with any terms and conditions of travel which may have warned the applicants that the viewing of particular wildlife, or weather conditions, may result in the promises or representations made, not being fulfilled. 78There was no reference, in the documents supplied by the first respondent under the procedural orders, to any such terms and conditions. At the outset of the hearing Mr Dudley was asked where such conditions might be. He then identified the conditions in small print on page 2 of the brochure, referred to above, acknowledging that he had not referred to those in his response. He pointed out that, in the applicants' documents, his e-mailed response of 4 July 2013 referred to those conditions, and conceded that these had not been provided to these applicants prior to their payment of the deposit for the tour. 79He mentioned that there were terms and conditions on the website of Ecruising, but in his documents and at the hearing these were never provided, and no reference had been made to where these terms and conditions might be located, or how those terms and conditions may have been brought to the notice of the applicants. 80In his detailed response Mr Dudley emphasised that, "Nothing is certain in Africa, especially the animals, and weather is something that no one has control over." He pointed out that the lodges provided in his view the best possible service in remote areas, and that most roads in Tanzania and Kenya in the national parks are unsealed, and therefore difficult to travel on at times. 81He included a statutory declaration from a member of the tour party who was very happy with the tour, and who referred to seeing thousands of wildebeest. This person was not called as a witness. 82He attached information on Tanzania provided by what appeared to be a tour operator, "Expert Africa" (First respondent's Appendix A). He referred in particular the following heading " The best time to see the great wildebeest migration", under it was stated as follows: "Many travellers visit Tanzania to see the Serengeti's great wildebeest migration. Linked to the rainfall, this stunning migration of thousands of wildebeest -- accompanied by zebra, gazelle, eland and impala -- takes place throughout the year, and follows a fairly predictable pattern, as the wildebeest are constantly seeking fresh grazing and water. Having said that, the wildebeest migration happens all year -- the migration can be found during any given month; you just need to know where to look! The question should really be about the "best places" to see them during a given time of the year -- and when visiting them is most enjoyable." [Tribunal's underlining] There was a link below to a map of the wildebeest migration, but this map was not provided by Mr Dudley. 83It was pointed out by the applicants that at the top of that page under the heading "Weather and Climate" it is stated: "We are often asked "when is the best time to go to Tanzania" and the answer is often complex. It will depend on many things including your interests, exactly where you want to visit and why you're travelling. One person's best time can be another's worst! The main factors to influence these are......" 84Following this is a detailed comment upon the weather in Tanzania, and that the climate varies considerably within the country itself. It does however continue on to say, "However, generally the main rainy season, the "long rains", lasts during about March, April and May. Afternoon tropical downpours are the norm . . ." 85A chart was provided on this page in which the average rains in April are clearly way above most other months. 86Mr Dudley submitted that this description shows that the migration can be seen at any time of the year, in different places. 87Mr Dudley said in evidence that whilst it had initially been arranged for himself and his wife to travel with the tour party, business issues ultimately prevented them from doing so, but a senior company representative was sent instead (Mr Ellis). In his evidence he apologised for a group e-mail sent out during the tour by Ecruising stating that he and his wife were having a wonderful time on that 2013 tour, which he said was a mistake and was sent out by a staff member who knew they were in Africa but had not been aware they were not in fact on this tour. 88He pointed out that the land component of the tour had to be based around the arrival time in Cape Town of the Queen Mary (9 April). He said his company relied on Bench International to then make the arrangements for the ground tour, which he oversaw. He believed that the camps and hotels were up to standard, and that the applicants had had to a degree selected photographs of their accommodation which did not show the full picture. 89He stressed that in the itinerary (Appendix 16) referring to the Serengeti on 23 and 24 April that it says, ". . a chance to see the great herds". He stressed that in Africa nothing is certain. He attached an e-mail where he responded to particular applicants complaints and apologised for something occurring on 22nd of April. As noted he included feedback from the one couple who enjoyed their tour very much. 90The second respondent, Southern Cross Safaris trading as Bench International, provided a very comprehensive written response, addressing most of the issues raised by the applicants in relation to the problems noted in the chronology, and the accommodation. 91The thrust of the response by the second respondent in the documentation is set out below. It included the submission that Southern Cross Safaris had made no representation to any of the applicants, ". . with the marketing of this tour", and none of the specific representations relied on above by the applicants. Mr Edwards gave evidence that Southern Cross Safaris had been in the tour business for 40 years and he had three years experience of managing these tours, in conjunction with expert guides based in Africa. 92Aside from the one paragraph on the second page of the itinerary produced by Bench International for Ecruising, which referred to the migration, there were indeed no representations made by the second respondent to any of the applicants. In any event, by the time that itinerary was produced, all of the tour party had paid in full for the tour. In the circumstances, other than concessions made by Mr Edwards in his evidence, the applicants in effect did not seek an order against the second respondent. 93Thus the only relevance of the documentation from the second respondent, and the evidence of Mr Martin Edwards, the general manager of the second respondent, relates to whether that evidence and documentation assists the case of the applicants, or the first respondent. 94In relation to the itinerary provided, Mr Edwards documented and said that this particular itinerary is a standard itinerary for this region, and in fact operates throughout the year. He acknowledged that due to the excessive and exceptional rains experienced prior to, and during, this tour, the road journey times were increased, and changes had to be made in relation to the timing of the tour. The second respondent confirmed that it had to be timed to commence after 9 April when the ship arrived in Cape Town. In relation to the road travel, he quoted extracts from country information for Kenya and Tanzania referring to these countries being Third World countries and that the roads are often rough, and that, whilst the road conditions can sometimes be bad, the views and spectacular scenery make up for it. 95Mr Edwards said that out of good faith the second respondent will refund the applicants the (luxury) lunches missed on 16, 22 and 25 April at $90.00 per person. 96In the second respondent's documentation in relation to the wildebeest migration, was the following statement by Mr Edwards: "It must be made clear that the migration is not an event that happens for two or three months of the year. The animals cannot and do not disappear, they move (migrate) throughout the year through Tanzania (normally from November to mid-July) and Kenya (mid July to October) and as you can see from the attached maps they normally pass through the Serengeti in April." 97Under questioning from Mrs Judith Ueda he acknowledged in his evidence that "The Migration", as it is generally understood, refers to great hordes of wildebeest and zebra crossing the main rivers in the particular national parks, such as the Mara river, and the Grumeti river. In the second respondent's summary below the above, it continued as follows: "I am not sure who the applicant spoke to and how in-depth the conversation was but possibly they are referring to the crossings of the Mara River that happens normally in July/August and again in October/November. This is absolutely not something we would have ever promised as: (1) it would be the wrong time of the year and (2) it is something that is dependent on rain cycles and natural events that are completely out of our control, so even in July/August and October/November we would still never promise this to any client." 98The map which Mr Edwards attached to this part (referred to above in relationto the applicant's evidence) showed the woodlands and short grass plains area over which the migration takes place, in northern Tanzania and partially in Kenya. It is provided by Tanzania Wildlife Safaris. It shows a generally clockwise migration to the south in October November and to the north in July and August. It shows the migration to be at the very southern end of the Serengeti National Park from December to the end of May, and then moving west in June, before moving north again in July and August. As noted, it shows that the only places on the migration that the tour party visited were the Masai Mara and the Serengeti Migration Camp, with the Ngorogoro Crater Reserve well to the south of the migration. 99Attached was also a summary of the migration by the African Wildlife Foundation, which was clearly large and in quite considerable detail. It referred however to, " . . the famous Serengeti population of wildebeest, which makes a migratory circle of 5000 miles each year, beginning right after the calving season at the start of the year." [shown as February on the previous map]. The summary continues, "By the end of the dry season, the wildebeest have almost exhausted the grazing lands and returned to the Serengeti plains as the rains begin". 100Also enclosed were Bench International's booking terms and conditions, in which there was a detailed section headed "Our Responsibility", which explained the various factors which the second respondent said were out of their control, in some detail. It is agreed that these conditions were in any event never supplied to the applicants. They were however supplied to the first respondent by the second respondent. 101In his evidence Mr Edwards confirmed that this tour had been planned in 2011 with Ecruising. He said that tours are still done in the wet season (the season of "the long rains"), because there are in fact fewer tourists, sometimes a benefit. He said however that the second respondent had not been provided with the ages of the tour party (who are apparently all in their 60s and early 70s). He understood that for most of the tour there was no rain during the day (conceded by the applicants). He was clear that the cost of the lunches needed to be refunded. 102He was asked by Mrs Ueda as to the timing and the marketing, and he said that he, ". . could not comment on whether it was good or bad", although he believed that tours could still be carried out at any time of year. He conceded that Southern Cross Safaris have their own safari called "The Migration Tour", which is from July to October. He agreed that in April the migration had more than likely headed south, and would be spread out across the plains, and not dense. He agreed that the map made no mention of the migration in April, and the normal concept of "The Migration" is the crossing of the rivers, which occurs in July to October. He agreed that Bench International treated the tour as a safari, and not "The Migration", and indeed the title of the itinerary prepared by Bench International is, "Kenya and Tanzania Safari". 103Mr Edwards said that they had specifically looked at all the accommodation prior to the tour and that the Elewana accommodation is of a high standard for Africa.

Findings on the Evidence 104Dealing with the claim against the second respondent, Southern Cross Safaris, first, it is clear that any representation made by the second respondent, contained in the second respondent's itinerary Appendix 16, was made well after each of the applicants had paid in full for their tour. Thus none of the applicants relied upon any representations by the second respondent prior to committing in full to the tour. 105The Tribunal is therefore not satisfied that any case against the second respondent for misleading and deceptive conduct, or misrepresentation can be made. 106Whilst the second respondent was clearly involved in the arrangements for accommodation, the applicants' case for compensation for a failure to live up to the representations made about the accommodation also fails for the same reason. 107True it is that the second respondent, in the main two paragraphs describing the tour, on the second page of the itinerary prepared by the second respondent (Appendix 16), beginning ".. for sheer weight of numbers . . . One of the world's most remarkable sites," does rather confirm the applicant's case that the tour included observing the migration of the wildebeest and the zebras. However that statement goes more to support the applicant's case that this was understood by the tour party as being a crucial part of the tour. It was after all provided to the applicants by the first respondent. 108Based on the concessions made by Mr Edwards in the documents and in his evidence, a small order is made against the second respondent to recoup the lost meals, in the amount of $270.00 for each applicant. 109Because of the above findings, the Tribunal is not satisfied that the second respondent is liable in any other way to the applicants, on any remaining part of the claim. 110The Tribunal has set out, in particular, the applicants evidence, in some detail. This is because the first respondent's case was that the itineraries, and the activities within the itinerary, were changed because of the weather, and it was said by the first respondent that a condition of the contract was that the itinerary and those activities could be changed, depending upon the circumstances. It was also in effect submitted by the first respondent that this term also acted as a warning that in relation to the representations made, the commencement of the migration depended upon the weather, and depending upon the circumstances, the itinerary and the activities within it could be changed at any time (such as, for instance, the weather conditions). 111Further, the first respondent's case was that, in effect, the applicants did not see "The Migration" because of the adverse weather conditions, and relied upon the condition of the contract (or the warning contained therein), namely, "Commencement of the gathering of the animals before the migration is subject to weather conditions." 112The applicants, being aware in particular of the second part of the response, thus provided evidence in detail as to where "The Migration" was expected to be at particular times of the year, in particular where it was likely to be in April. The core of their case was that, in essence, "The Migration" would not, in any event, have been in any of the areas where they were on tour, in April. 113The claim against the first respondent will be dealt with under the particular paragraphs of the applicant's summary of their claim set out at the beginning of these reasons. 114The submission that the itinerary was poorly planned and impossible with regards distances to be travelled is ultimately not proved on balance of probabilities. Looking carefully at what was involved and the distances, and taking into account in particular the evidence of Mr Edwards and his documentation, the itinerary was always feasible, but ran the risk of delays if the roads became more difficult to travel. There is no dispute that the rains in late March and early April at this time of year were exceptional, and without even having a particular condition as to the weather, it is realistic to assume that all tours in Africa are going to be subject to road transport difficulties once adverse weather conditions intervene. 115True it is that this tour was manifestly taking place in the wettest month of the year, but on the other hand there is no evidence as to what might happen to the roads with normal rainfall at this time of year. There is no claim that the four-wheel-drive vehicles used were unsuitable. The part of the claim which involves the assertion that the hazardous condition of the roads had not been taken into consideration therefore fails. Again it would be reasonable to assume that a lot of the roads over which the tour past would be rough, and there is no clear evidence as to what would be the situation in a normal rainy season. The absence of other tour groups does not really assist the claim, when the evidence of Mr Edwards, which is largely accepted, is taken into account. 116The Tribunal accepts that parts of the itinerary clearly did not eventuate, such as the tour party not seeing large herds of animals in the Masai Mara, and the Serengeti (except for some small groups of animals on the way into the Serengeti). Further, the balloon flight over the plains saw no virtually no animals. As noted, the early morning and late evening game drives did not occur, due to lack of wildlife, and the result was that on the days where these were described, the tour party in fact took long drives over the middle part of the day, again with not much apparent result. Mr Ellis's blog and some of the other evidence clearly confirms that, in all these areas, some wildlife was seen, just not in large groups. 117The Tribunal finds that some small herds of wildebeest were seen in the Ngorongoro Crater area, and this may be the "thousands" referred to by Mr Dudley's two satisfied tour participants. But the evidence from the applicants is that this was not, "The Migration", it was only small herds and not thousands. Nobody appeared to suggest it was the migration. In any event, the evidence of the applicants given in person is accepted, over that in a declaration provided by the respondent, where those witnesses were not called to give evidence in person. 118The missed meals were clearly documented and conceded by the second respondent. 119The applicant's claim relating to the excessive tse tse flies, mosquitoes, and sandflies, other than some evidence of the bites and the evidence of each of the applicants, is difficult to make out finding upon, as it is likely an issue of degree. Common sense suggests that certainly mosquitoes and sandflies would be more prevalent in the season of the "long rains", and in the wettest month. The applicants' documentary evidence makes mention of tse tse flies between March and May on the Tarangire Park information. There are no other independent warnings, other than the now clear information that April is by far the wettest month, and largely not recommended to tour during that month. The Tribunal is unable to make it clear finding that, in a tropical country, the prevalence of these insects was excessive. 120In relation to the applicants viewing "The Migration", the Tribunal is ultimately satisfied that, as largely conceded in the evidence at the hearing on behalf of the first respondent, the tour party did not see "The Migration". The evidence given on behalf of the second respondent also largely conceded this. 121The Tribunal accepts the evidence that "The Migration" is generally viewed as the vast herds of animals such as wildebeest and zebra crossing one of the two rivers referred to. Further, even if "The Migration" could be understood to be simply seeing vast herds of those animals moving across the plains, again the Tribunal is clearly satisfied that this was not seen at all. 122Further, despite some of the statements which suggests that "The Migration " occurs all year round, the Tribunal accepts that the preponderance of the evidence is that, because of the timing of the tour, these herds of "The Migration" were never likely to be seen in either the Masai Mara or at the Serengeti Migration Camp. All the evidence points to, at the very least, those animals being spread out, and not part of vast herds, at the end of the southern Serengeti. It seems that the tour party may have passed through some of that area, but it was never represented as having "The Migration", and indeed was not seen, in any event in that area. 123However, the areas in which the migration is usually considered to be, namely the Masai Mara and the Serengeti Migration Camp, would, on all the evidence from the government and tourism websites, and the maps associated with those sites, never have been populated by those herds at this time of year. 124The Tribunal accepts the evidence noted above in applicants' Appendices 12, 13a, 13b, 13d and 15b, part of first respondent's appendix A, and in the second respondent's statement, "It must . . . any client". There is really very little evidence to the contrary in first respondent's Appendix A, and no evidence has been produced that the migration was likely to be found in any areas that the tour stayed at or visited. 125The best that they saw were some small groups of animals in the Ngorongoro conservation area, and some on the way from there to the Serengeti National Park, but there is absolutely no evidence that this was part of "The Migration ". 126The case for these particular applicants was that seeing "the migration" was in effect the whole point of their tour. However they certainly did not emphasise this in the e-mails back and forth to Mr Dudley prior to the initial booking, or indeed prior to commencing the tour. 127On the other hand, the whole title of the tour, namely, "QM2 and MIGRATION", all in capitals, clearly suggests that, in addition to cruising on the water in a stupendous ship, the tour involved actually seeing "the migration". These applicants relied on the general e-mail from Ecruising of 12 January 2012 (Appendix 3), which clearly also emphasises "the migration". The phrase "unparalleled . . ." could either refer to "the migration" or simply an African safari. There is no particular link in that e-mail or the brochure between that phrase and " the migration". 128However the words "the event . . ." could clearly be referable to a particular event as part of the tour, namely " the migration". 129Further, even though it is accepted that the second respondent viewed the tour they were arranging as a safari, the emphasis on "the migration" being most of the descriptive summary of the itinerary (Appendix 16), provided by the second respondent to the first respondent, and the applicants, clearly supports that the applicants would indeed expect to see "the migration", being at the least vast herds on the plains, or, more than likely, those herds crossing one of the two particular rivers, as indeed shown by the photograph in the Serengeti Migration Camp website. (Page 11 of the chronology). 130Therefore, whilst the applicant's case would have been stronger had they specifically referred to their wanting to see "the migration" in their preliminary e-mails, all the above evidence clearly suggests that they were entitled to assume that, as a significant part of this tour, they would see "the migration". 131The applicants submit that they relied, when undertaking this tour on the contents of the e-mail of 12 January 2012, because they paid the deposit in February, and did not receive the brochure until March. On the other hand, they had the information in the brochure (Appendix 15b) well before they made their final payment in November. The information and photographs in the brochure surely had to be relied on by them in continuing, in this particular case, with the tour by making the final payment. That is because there are crucial statements and photographs in the brochure that emphasise and highlight parts of the tour that they relied on at the hearing. The brochure is such a comprehensive document that, in finalising the travel contract, they must have had reference to it. 132The terms and conditions in small print on the second page of the brochure therefore have to be taken into consideration. Whilst those terms and conditions are nowhere near as detailed as those provided by Bench International (but not applicable to these applicants in the circumstances), they do clearly warn of the uncertainty of weather conditions, and that parts of the itinerary may well change for this and other reasons. 133Further, even though they may not have been in a position to be negotiated, those conditions are ultimately reasonable, and to be expected, particularly in a tropical developing country. 134Rather unfortunately however for, in particular, the first respondent, there is no warning that, for instance, the month of April is the wettest month of the year in Tanzania, and that this may affect travel on the roads and viewing of wildlife. Indeed, had such a warning being provided it seems likely that none of this litigation would have been instituted, or some reconsideration may have been given by these applicants to participating in the tour. 135Further, the first respondent in particular warrants that their care and skill is of a high level. Refer for instance at the top of every page of the brochure, "Australia's leading cruise travel agency", and the range of other statements set out by the applicants previously - (and in Appendix 16). It then becomes a particular problem for the first respondent if such a warning as outlined above is not given. Given the high level of care and skill represented, the tour participants were therefore, frankly, not properly warned. 136The tour participants were however clearly on notice, in the part of the brochure dealing with the Masai Mara Reserve, that the wildebeest migration in that area was, ". . from around July to October". 137This is clearly stated in the course of an extensive description of the wildebeest migration in the Masai Mara, in the paragraph dealing with that reserve. 138The Tribunal considers that this was a sufficient representation to put the applicants on notice that the migration would not be viewed in the Masai Mara reserve in their upcoming tour in April. 139There is however no such warning or limitation in relation to the other part of the tour where the migration is likely to appear, the Serengeti Migration Camp portion of the tour. Even the name suggests that this is the place to see the migration. There are considerable references to crossing the river, and both the e-mail of 12 January, the brochure, and the second respondent's itinerary all support a representation that at some stage on the tour the migration would be seen at either the Masai Mara or the Serengeti Migration Camp. The brochure eliminates the Masai Mara, for this time of the year, so only the Serengeti Migration Camp is left. 140Whilst one of the references refers to, "a chance to see . . the migration "all the other references clearly give the reasonable expectation that "the migration" would be seen somewhere, and more than likely, at the only place left, the Serengeti Migration Camp. Further, there are extensive descriptions as to the wonder of the experience of viewing "the migration" at the Serengeti Migration Camp. Refer for instance the underlined portions of the representations quoted previously from Appendix 3, "On the final day. . . it will be the start of the migration season so keep an eye out!", "Great chance to see . . in the shade", and Appendix 5b, "the greatest show on earth -- the wildebeest migration", and, "the Serengeti -- magnificence beyond belief. Internationally renowned for the greatest wildlife spectacle on the planet . . . part of it", "Hidden among. . the starting point of the migration", and, "But it is the drama. . experienced before". 141Therefore the Tribunal concludes that "the Migration " was an essential part of this tour and, by elimination, was expected to be seen, in April, at the Serengeti Migration Camp, enhanced by all the descriptions of that camp. The condition of the itinerary being subject to change without notice does not absolve the first respondent from this representation, because the representations are that an essential part of this tour was to view "The Migration". Further, as pointed out by these applicants, whilst the weather conditions were a problem, it was not the weather that prevented them seeing "The Migration" at the Serengeti Migration Camp. The weather conditions may have affected other parts of the itinerary, but they certainly did not affect whether the "vast herds" would be in most of the Serengeti, particularly the northern part, and crossing the Grumeti River. They were never going to be there in April. 142The Tribunal does however find that the first respondent's submissions are valid in relation to the flights from Australia to and from Africa, the internal flights, the transport provided, the tour guides provided, and, largely, the accommodation. The evidence as to the standard of the accommodation is suggestive of lapses in some areas, but does not satisfy the Tribunal that on the balance of probabilities, it was below the standard to be expected in the remote areas, nor indeed, in Zanzibar. They were clearly lapses, perhaps arising from it being low season, but the degree does not warrant an adverse finding. 143Thus, other than the first respondent's failure to exercise the represented care and skill in relation to the likely weather in April, and the misleading representations in relation to being able to view "the migration", none of the other misrepresentations or conduct in relation to the remainder of the tour are proved on the balance of probabilities. Or, put another way, the tour, other than in these areas, was carried out.

Liability 144As noted above, the provisions of the Australian Consumer Law (the ACL) apply to this transaction. This was a supply of services by a supplier to a consumer, in the course of trade or commerce, and the applicant met the other requirements of the ACL as set out above. 145The applicants assert that false or misleading representations were made by the first respondent concerning the nature of the services, and their standard. They also assert that, in effect, there was misleading or deceptive conduct, in that they were misled as to the nature, the characteristics and suitability of purpose of the services provided. 146In terms of the findings set out above, the only areas where these elements would appear to apply are in relation to the representations as to the level of expertise by the first respondent, when the tour was to take place during the wettest month of the year, with the resultant inability on a number of occasions to carry out portions of the tour specified in the itinerary, particularly any viewing of wildlife. 147Further, the applicant's case is that, notwithstanding representations made, one of the purposes of the tour, viewing "the migration" was never going to be put into effect. 148The relevant clauses of the ACL would therefore appear to be section 18 - Misleading or deceptive conduct, section 29 (1) (b) - False or misleading representations about . . services, and section 34 - Misleading conduct as to the nature . . of services. 149The relevant parts of those sections are as follows: 18 Misleading or deceptive conduct (1) A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive. (2) Nothing in Part 3-1 (which is about unfair practices) limits by implication subsection (1). 29 False or misleading representations about goods or services (1) A person must not, in trade or commerce, in connection with the supply or possible supply of goods or services or in connection with the promotion by any means of the supply or use of goods or services: . . . (b) make a false or misleading representation that services are of a particular standard, quality, value or grade; or 34 Misleading conduct as to the nature etc. of services A person must not, in trade or commerce, engage in conduct that is liable to mislead the public as to the nature, the characteristics, the suitability for their purpose or the quantity of any services. 150This Tribunal is grateful to Member JA Levingston, who, at paragraphs 16 to 22 in Leggett v Wyndham Vacation Resorts Asia Pacific Pty Ltd [2013] NSWCTTT 539 sets out the requirements to prove misleading conduct. 151Adopting that members reasoning, relevant conduct must contain or convey a misrepresentation. It is a statutory obligation of strict liability and intention is not relevant. The question is to be determined objectively by the Tribunal. The conduct has to be shown to induce all be likely to induce error, and cause the recipient to labour under an error. The error must be obvious or predictable and not fanciful. It must be more than causing confusion. Thus the conduct has to be likely to mislead or deceive. 152The Tribunal has found that the representations induced in the applicants the belief that they would be seeing "the migration". It was conduct (a representation which) was likely to mislead. The first respondent is therefore in breach of section 18 ACL, in relation to this aspect of the claim. However, on the factual findings above, the representation can really only be applicable to the applicants not seeing "the migration" at the Serengeti Migration Camp, but not at the Masai Mara. 153There was no misleading or deceptive conduct in relation to seeing "The Migration" at Masai Mara (crossing the Mara River) as that was clearly outlined as occurring from July to October. 154Does the finding in relation to the failure to warn the applicants of the tour being in the wettest month of the year come within the provisions of section 29 or section 34? 155That is, has the first respondent made a false or misleading representation that services are of a particular standard, quality, value or grade? (Section 29) It is possible to argue that the first respondent represented itself as providing travel services of a high standard, with a high level of professionalism and expertise. The failure to warn of the more than likely conditions at the time of the tour (that is during the time of "the long rains"), which would affect both on ground travel and viewing of wildlife does seem to be certainly less than the high standard represented. 156Further, both the above sets of facts would appear to be conduct liable to mislead as to the nature, characteristics and suitability for purpose of the relevant travel services (section 34), and the Tribunal so finds. 157Section 61 of the ACL deals specifically with the fitness for a particular purpose of services, however a precondition of that section operating is that the consumer expressly or by implication, makes known to the supplier any particular purpose for which the services are being required. In the alternative the consumer is required to make known the result that the consumer wishes the services to achieve. 158In the particular circumstances of these two applications, this was not made known to the first respondent by these applicants, either expressly or by implication. They simply came to their own understanding as to what the tour would involve from the e-mail of 12 January, and the brochure. They did not communicate their desire to see, for instance, "The Migration" to the first respondent. Therefore that particular section does not come into play, and no adverse findings are made under that section. 159The consequences of the above findings are that, under the ACL, the applicants may recover the amount of the loss or damage by action in the Tribunal (section 236 ACL and section 74 Fair Trading Act 1987). This will however be dealt with below. 160The ACL does not preclude findings, and orders, also made under the Consumer Claims Act. As noted, this transaction was a supply of services to a consumer by a supplier in the course of business, and otherwise came within the provisions of the Consumer Claims Act. The Tribunal, in making an order under that Act, is required to take into consideration the provisions of section 13 of that Act, the relevant parts of which are as follows: 13 Matters to be taken into account by Tribunal when making orders under this Part (1) When making an order or orders under this Part, the Tribunal must make such orders as, in its opinion, will be fair and equitable to all the parties to the claim. (2) Without limiting subsection (1), when the Tribunal is considering whether or not to make an order or orders under this Part, the following factors are relevant, so far as they are material to the particular circumstances of the case: . . . (g) where the subject of the claim is a contract for the supply of goods or services or a contract collateral to such a contract: . . . (iv) if the contract is wholly or partly in writing, the physical form of the contract and the intelligibility of the language in which it is expressed, and (v) the extent (if any) to which the provisions of the contract and their legal effect were accurately explained by any person to the claimant and whether or not the claimant understood the provisions and their effect, and (vi) the commercial or other setting, purpose and effect of the contract. 161As noted, the evidence is that the conditions in small print at the bottom of the second page of the brochure did not come to the attention of these applicants until they were referred to it, by Mr Dudley, after the completion of the tour (e-mail 4 July 2013). True it is that those terms were not, on any objective view, obvious. On the other hand, the applicants rely on the detailed summaries of what was stated should be seen on the tour, in that brochure. Therefore, the whole contents of the brochure should be taken into account. 162The first respondent, in referring to those conditions, clearly assumes that the contents of the brochure form part of the contract between the parties, and accepts contained in brochure are representations which were made to the applicants. To that end, the Tribunal can take those terms and conditions into account. However, the Tribunal should also take into account the somewhat fulsome descriptions as to what will be seen on the tour, and more particularly the description of the tour itself "2013 QM2 and MIGRATION" in capitals. 163The Tribunal has found that one of the significant purposes of the contract (as contained in the brochure) was for the tour party to see "The Migration". It has been found that the tour party did not see "The Migration" and therefore that purpose was not carried out by the first respondent. The condition of the contract in relation to the weather does not in fact have a bearing on this purpose not being achieved, as "the migration" was not going to be seen in any of the areas represented as where the migration would likely be, because the tour took place in April. In particular, in April, "the migration" was never going to be seen at the place where it was represented as being the best to see the migration, the Serengeti Migration Camp. 164The Tribunal is thus satisfied that the applicants, in this respect, did not receive what they had bargained for, namely viewing "the migration", in particular, at the Serengeti Migration Camp. 165Considering the terms of the contract in relation to any change of itinerary, it is however possible to find that the changes in the itinerary were, in all the circumstances, reasonable. 166Therefore, under the Consumer Claims Act alone, the applicants should only be compensated for what is fair and equitable in their not seeing "the migration" where it was represented to be seen, at the Serengeti Migration Camp.

Damages and/or compensation 167In relation to the first finding of liability for misleading conduct or misleading representations, the applicants say they suffered disappointment, inconvenience and discomfort arising from the tour taking place in the wettest month of the year, namely April, as a consequence of the misrepresented level of care and skill found above. 168It is not however necessary to go into the degree, or the detail, of disappointment, inconvenience and discomfort which the applicants say they suffered, as this Tribunal has imposed upon it such severe restrictions in relation to making an award for these matters, that it is not possible to make an award for this part of the claim. 169This has been set out clearly in a number of recent decisions of superior courts and this Tribunal, however it is necessary to briefly set out the reasoning again for these parties. 170The provisions of the Civil Liability Act 2002 apply to this Tribunal, as under the section 3 definitions in that Act, Court includes Tribunal, and in relation to a claim to damages means any Court or Tribunal by or before which the claim falls to be determined. Also in that section it is stated: Damages includes any form of monetary compensation [with specific exemptions not relevant here] 171Further, under schedule 1 of the Fair Trading Act 1987, the Civil Liability Act 2002 is "Paramount legislation". Therefore, under section 4 (6) of the Fair Trading Act, where there is an inconsistency, the provisions of the Civil Liability Act prevail. 172The Civil Liability Act 2002 part 2 applies to, "An award of personal injury damages": Civil Liability Act section 11 A (1). The Civil Liability Act applies whether the claim for damages is brought in tort, in contract, under statute or otherwise: Civil Liability Act section 11 A (2). In Flight Centre v Janice Louw [2011] NSWSC 132 it was held that a claim for damages for inconvenience, distress and disappointment constitutes a claim for personal injury damages, such claim thus coming within the provisions of the Civil Liability Act part 2. 173Section 16 of the Civil Liability Act has the effect that such damages are only available if the degree of impairment is established to be more than a particular percentage of a most extreme case. 174Further, the Civil Liability Act provides that those damages cannot be awarded other than in accordance with that Act. 175The facts in Flight Centre v Louw were that the original plaintiffs had purchased a holiday at a tropical resort, but suffered inconvenience, distress and disappointment because at the time of their holiday the resort was undergoing reconstruction which was noisy, restricted their use of the adjoining beach, and distress was also suffered arising from intrusions to their privacy. It had been found that the travel agent breached implied contractual provisions by negligently recommending this resort. 176Acting Justice Barr in Louw referred to extracts from their Honours in the Court of Appeal in Insight Vacations Pty Ltd v Young [2010] NSWCA 137, which case Barr AJ found on the facts was distinguishable, as the facts in Young arose from the then plaintiff suffering personal injury by negligence whilst on a holiday. The trial judge in Young had awarded the plaintiff damages for "disappointment", as a separate part of the claim, and held that damages for "disappointment" could be separated from the damages for personal injury. 177In the Court of Appeal in Young, Basten J, with whom Spigelman CJ agreed, held at paragraph [129] (not at paragraph [125] as expressed in the head note): "It is sufficient for present purposes to conclude that elements of distress and disappointment resulting from the physical injury in the course of the holiday, would have warranted inclusion in an award of damages for non-economic loss under the general law in relation to negligence. Accordingly His Honour was in error in seeking to separate out some element on account of disappointment." 178It is however still relevant to also set out from Justice Basten's decision, referring to the earlier authorities, at paragraph [125], as follows: "It is undoubtedly true, as the Chief Justice noted in Ibbett * [at 21], that injury to reputation, deprivation of liberty and outrage, humiliation, indignity and insult are not commonly referred to as forms of personal injury; rather they are usually derived from torts other than negligence, often intentional torts. Matters such as grief, anxiety, distress and disappointment, may fall into a different category. They can be elements of pain and suffering which are the subject of awards for non-economic loss." *[State of NSW v Ibbett [2005] NSWCA 445] 179In Louw, Barr AJ found that the reasoning in Young was not restricted to negligence claims arising from personal injury, but could also apply to claims in contract. 180By the same analogy, it could be argued that, since the Civil Liability Act applies to claims under statute, the applicants claim for disappointment arising from the conduct of the first respondent found above, would have to come under the provisions of the Civil Liability Act. 181All the previous Supreme Court decisions dealing with "disappointment" and claims for damages appear to have arisen as a tortious negligence claim (Young) or solely under contract (Louw). In Patel v Malaysian Airlines Australia Ltd (No 2) [2011] NSWDC 4, Judge Levy SC found that the applicant suffered a serious degree of distress and disappointment arising from a finding of misleading representation under the then Trade Practices Act, found against the respondent. His Honour awarded damages under the then section 82 of the Trade Practices Act, treating the applicants anxiety and distress as personal injury for the purposes of the Civil Liability Act. The level of the applicants distress and disappointment however in that matter was major. Applying the relevant threshold, damages were still ordered. A separate order was made for a loss of luggage. 182There appear to be no other decisions where a claim for "damages (or loss)" is found to be specifically under statute (such as here, under the ACL). It could be said that the contract for travel services underlies the claim under the Consumer Claims Act. It would appear in this matter that any finding under the ACL arises from a specific breach of the statutory provisions, and not from breach of contract or negligence. 183In any event, taking into account the specific provisions of the Civil Liability Act, which refer to claims for damages under statute, this Tribunal finds that the specific claim for compensation or damages for "disappointment" (and indeed inconvenience and distress) arising from the conduct of the respondent (or misleading representation) in relation to the timing of the tour in the season of the "long-rains", falls under the provisions of the Civil Liability Act. 184Further, it would appear that the finding on the facts in this area is akin to the facts in Louw, in that this part of the tour was in essence provided, however with resulting inconvenience and distress. 185It is clear that any award of damages for "personal injury" under this heading would not exceed the relevant threshold (comparing for instance Zreika v State of New South Wales [2009] NSWC 99, in which much more serious injury did not reach the relevant threshold). 186Thus damages or compensation cannot be awarded to the applicants under the first finding in relation to the conduct of the first respondent. 187However, in relation to the second finding against the first respondent, that of "the migration" not being seen, contrary to the representations, specifically not at the Serengeti Migration Camp, this would appear to be in a different category. In relation of this finding the applicants simply did not receive what had been represented, which was a significant purpose of the tour. 188Section 236 of the ACL is as follows: 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. 189The Tribunal has found that the relevant conduct in this area contravened the relevant provisions of the ACL. Notwithstanding the heading of the section, it refers to the claimant suffering "loss or damage" and goes on to refer to the recovery of "the amount of the loss or damage". 190This paragraph is essentially reproduced in section 74 of the Fair Trading Act, the relevant parts of which are as follows: 74 Actions for damages and compensation orders . . . (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. 191Section 236 (1) of the ACL largely reproduces the former section 82 of the Trade Practices Act 1974, which it (in part) replaces. The High Court in a unanimous decision in Henville v Walker [2001] HCA 52; 206 CLR 459 considered the meaning of "loss or damage" in that section. Whilst that case is mainly concerned with causation for loss, important statements of principle were made as to how to calculate loss or damage in that section. Gleeson CJ at paragraph 18 said: "Section 82 of the Act is the statutory source of the appellants entitlement to damages... The task is to select a measure of damages which conforms to the remedial purpose of the statute and to the justice and equity of the case. The purpose of the statute, so far as presently relevant, is to establish a standard of behaviour in business by proscribing misleading and deceptive conduct, whether or not the misleading or deception is deliberate, and by providing a remedy in damages. The principles of common law, relevant to assessing damages in contract or tort, are not directly in point. But they may provide useful guidance, for the reason that they have had to respond to problems of the same nature as the problems which arise in the application of the Act. They are not controlling, but they represent an accumulation of valuable insight and experience which may well be useful in applying the Act." 192Further, Justice Gaudron said at paragraph 63: "Sub-section (1) of section 82 of the Act allows "[a] person who suffers loss or damage by [contravening] conduct" to recover "the amount of the loss or damage". There is nothing to suggest that the sub-section does not entitle full recovery of the loss or damage suffered by the conduct in question. Nor is there anything in the Act to suggest that the loss or damage is to be calculated in any particular way . ." and further at paragraph 66: "It was held in Marks v GIO Australia Holdings * that the relief available under section 82 (1) of the Act is not to be confined by analogy either with actions in contract or in tort. 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." *Marks v GIO Australia Holdings [1998] HCA 69; 196 CLR 494 193It is also interesting to note that under the ACL personal injury (at least as referred to under that Act) is now exempted from section 236, and has a whole separate part devoted to it. 194The object of the Competition and Consumer Act 2010 (Commonwealth), under which the ACL is a schedule, is, "to enhance the welfare of Australians through the promotion of competition and fair trading and provision for consumer protection". 195The Tribunal must, to give effect to the remedial provisions of that Act (as outlined by the members of the High Court when referring to the provisions it replaced), make some order which compensates the applicants for not achieving one of the significant purposes of the tour, or for their loss, but not for "the disappointment" of not achieving that purpose. Indeed, the Tribunal must give the applicants some compensation for the loss where, as set out by the applicants in paragraph 7 of their application, "the product was not delivered as advertised". Indeed, to give any real effect to the ACL and the Fair Trading Act in matters such as this, there must be some compensation or damages for that type of loss. 196This finding is different from the facts in Louw, as it is not a reduction in the quality of what was provided or represented, but a complete absence, or a failure to remotely provide, what was represented. 197True it is that the applicants in their later summary refer to their "disappointment" at not seeing "the migration", however their claim is also framed in terms of non-delivery of what was represented, as indicated in paragraph 7 of their application set out above. 198The situation in this matter is somewhat analogous to the decision in this Tribunal in Guriguis v World Mark South Pacific Club [2011] NSWCTTT 288. In that matter the applicants were unable to occupy their hotel except for sleeping purposes, arising from a cockroach infestation, and it was also not the type of room represented. There was an additional claim for personal injury. Member G G O'Keeffe dismissed the personal injury claim on the basis that the Civil Liability Act applied and the relevant threshold was not reached, but awarded compensation for the applicants loss in not receiving a room that they could properly occupy, and that they had bargained for. 199Similarly, Member L Williams in Hazell v Flight Centre Norwest [2011 ] NSW CTTT 540 dismissed a claim for a holiday that was provided for in a different tropical country, due to a mistake by the respondent. The applicants claim was limited to matters such as stress, anxiety and disappointment only. 200Under section 13 of the Consumer Claims Act, the Tribunal can take into account that a significant purpose of the contract was for the applicants to see "the migration", which they did not see. Again, they did not receive a significant part of what was bargained for. 201The Tribunal has to, under that Act (by section 13), assess what money order is "fair and equitable". Similarly, as indicated by Gleeson CJ in Henville v Walker, under the Commonwealth Act provisions which have been incorporated in the Fair Trading Act, the Tribunal has to assess what damages are fair and equitable. 202In terms of quantum, the applicants say simply that, having not received the purpose of the tour which was represented, seeing "the migration", they will have to book another tour, and thus they claim for the whole cost of another tour, or in the alternative, the lesser quote, in the region of $10,000.00, for a similar tour. They say this is their loss. 203Whilst such a claim may appear excessive, the framing of it in that way has some basis, in that, to achieve what was represented, they will have to participate in another tour, this time when the migration will be at the relevant places. 204The flaw in this argument is however that, as properly submitted by the first respondent, there were significant parts of the tour that were essentially carried out, and the applicants gained the benefit of that, in particular, the accommodation, the flights to and from Africa, the internal flights, the remainder of the sightseeing and viewing of wildlife, and the transport. Further, there was no real issue with the parts of the tour in, for instance, the Ngorongoro Crater Reserve and the Tarangire National Park, and, indeed, in other areas of the itinerary which did not receive criticism. The applicants clearly saw what Mr Ellis saw, and his enthusiasm would indicate that these parts of the tour were, on any view, enjoyable. 205In terms of quantification therefore, the applicants lost a significant purpose of the tour, but their loss is the cost of the portion of the tour where, by default, it was represented that they would see "the migration", that is, the portion of the tour involving the Serengeti Migration Camp. 206The quantification of that portion however still has its difficulties, as, despite questioning by the Tribunal, Mr Dudley would not reveal the cost of the air components of the tour. However, it is clear that part of the cost involved business class air fares to and from Australia, and the overnight hotels during those transits. Taking into account the calculations in Appendix 4, overall a possibly generous amount of $7,000.00 should be deducted for that part, leaving an amount for the actual land portion of the tour of $13,184.00. 207There were 15 days in the land portion of the tour. The applicants should have seen "the migration" at the Serengeti Migration Camp, so they lost the whole purpose of that portion of the tour, namely those three days. They clearly received the benefits of all the other sights, accommodation, and transport, on the tour. Taking into account the discretion under both sections 13 and 74, the Tribunal determines that it is fair and equitable that the applicants should receive the sum of $2640.00, in round figures, each. 208In addition, the small orders in relation to the second respondent are as set out above. D Sheehan General Member Civil and Administrative Tribunal of New South Wales 19 March 2014 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: 21 May 2014

Consumer Claims Act 1998(NSW)

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Judgment (8 paragraphs)

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