reasons for decision
APPLICATION
1.These are eight applications by a group of families who went on a trip to North America promoted and conducted by the respondent who is a licensed travel agent.
2.The applicants each claim compensation of 20% of the cost of their tours and 20% of the cost of tips pre-paid for the tour. In addition, the applicants who paid for the Applebee restaurant, claim a full refund of that payment.
3.The application in Wu was filed 30 October 2013 and the other applications were all filed on 29 November 2013.
4.The applications do not refer to any particular section of any Act, but the particulars of the claims are identified in six numbered paragraphs attached to each of the applications.
5.The claims arise from the services of the respondent as a travel agent in arranging a group tour to the United States and Canada in December 2012. The claims concern the inland tours.
6.Applications in the Tribunal do not require pleadings, and the particulars and submissions were sufficient to identify a number of claims under the Australian Consumer Law 2010 (NSW) ("ACL") ss 60 (Guarantee as to due care and skill) and 61 (Guarantees as to fitness for a particular purpose etc).
APPEARANCES
7.The applicants appeared in person and appointed one of the applicants to present their cases.
Legal representation for respondent
8.The respondent applied for legal representation by Mr Boyle, Solicitor prior to the hearing and again at the hearing. It had no statutory right of legal representation in these proceedings, and its earlier application was opposed by the applicants, and had been refused.
9.At the hearing a fresh application was made by the respondent to appear by its solicitor pursuant to the Civil and Administrative Tribunal Rules 2014 (NSW) ("CATRules") r 31 (Application for leave to represent a party). That application was opposed by the applicants on the grounds that they had previously objected to legal representation which had been previously refused; they were not legally represented; they were shocked to see the solicitor; they were at a disadvantage as lay people without knowledge of legal proceedings; and the solicitor would be able to unfairly influence the Tribunal.
10.An examination of the files showed that Mr Boyle had organised the evidence for the respondent and prepared submissions on the facts and law dealing with the eight applications against the respondent which were the same and the claims were based on the same facts.
11.The guiding principle to be applied was whether Mr Boyle was likely to be of assistance to the Tribunal in achieving a "just, quick and cheap" outcome: Civil and Administrative Tribunal Act 2013 (NSW) ("CATA") s 36 (Guiding principle to be applied to practice and procedure). The grounds for the previous refusal to grant leave to appear were considered, but the previous refusal of leave did not preclude consideration of a fresh application, and exercise of discretion.
12.The question of whether leave might be granted for a party to be legally represented in this Tribunal is to be determined by applying the CATA s 38(4), CATA s 45 (Representation of parties); CATRules rr 31 (Application for leave to represent a party) and 32 (Granting and revocation of leave for a person to represent party).
13.I considered CATRule 32 and found that Mr Boyle:
a)had sufficient knowledge of the issues in dispute to enable him to represent the respondent effectively before the Tribunal;
b)had (as a solicitor admitted to practice in the NSW Supreme Court and subject to the ethical obligations of his profession) the ability to deal fairly and honestly with the Tribunal and the applicants;
c)had sufficient authority to bind the respondent;
d)the applicants would not be prejudiced and his appearance would not be unfair to them; and
e)Was likely to assist the Tribunal by bringing focus to the real issues in dispute.
14.In the circumstances and pursuant to CATRule 32 conditional leave was granted to Mr Boyle to appear at the hearing for the respondent, the condition being that if he ceased to be of assistance to the Tribunal his right of appearance for the respondent would be revoked. The Tribunal had no cause to later revoke Mr Boyle's right of appearance.
JURISDICTION
15.The Tribunal has jurisdiction to determine claims arising under ACL: see Fair Trading Act 1987 (NSW) ("FTA") s 28; where the applicant is a consumer with a consumer claim within the meaning of the Consumer Claims Act 1998 (NSW) ("CCA") ss 3, 4 and 3A respectively, and the claim must be filed before the expiration of three years after the cause of action arose, CCA s 7(4).
16.I was satisfied that the applicants were each a consumer and supply of the respondent's services involved a consumer contract with the applicants whose interest was wholly or predominantly for personal use within the monetary limit pursuant to the CCA s 7, and that the claims were brought in time.
17.I was also satisfied that the claims did not involve a matter wholly within Commonwealth jurisdiction as the claims related to the inland component of the overseas trip and did not involve the air carriage component to which the Civil Aviation (Carriers Liability) Act 1959 (Cth) and Warsaw Convention apply.
Procedure adopted
18.The claims involved eight family groups each of multiple members, many of whom did not speak or read English and for whose assistance the Tribunal had provided an interpreter.
19.In another jurisdiction such a claim might form the basis of a representative or class action, but there is no such action in this Tribunal. The issue was how to procedurally manage the claims and ensure procedural fairness for all the parties whilst applying the guiding principle: see CATA s 36.
20.The Tribunal is required to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms: CATA s 38(4) (Procedure of Tribunal generally). Little formality does not mean no methodology or system, and the Tribunal adopted a procedure to give procedural fairness to the parties. Procedural fairness is the procedural process based on the bias rule and the hearing rule: Kioa v West (1985) 159 CLR 550 at 585 per Mason J which:
"...more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case."
by giving the parties a fair opportunity to present their case and evidence before making a determination which affects their rights: see Odgers, Uniform Evidence Law at [1.1.80]. Importantly, procedural fairness is determined by reference to the whole of the Tribunal's process and not any individual step or process considered in isolation: Calvin v Carr [1979] UKPC 1; [1980] AC 574 at 596-597; Greyhound Racing NSW v Cessnock & District Agricultural Association [2006] NSWCA 333 at [98].
21.The applicants appointed one of their group members to represent them all after a short adjournment to enable them to have a discussion about whom they would appoint. The usual hearing procedure was explained to the parties and during the hearing the applicants' representative had an opportunity to tender evidence, ask questions and make submissions. From time to time other applicants sought to ask a question which were refused and all questions were asked through the applicants' representative.
22.Mr Boyle had the same opportunity for the respondent and asked a number of relevant questions of the applicants' witnesses. Mr Boyle also sought to "flag" or raise a number of possible issues from time to time during the applicants cases which appeared to be speculative in the sense that the issue might never arise, but if pursued when raised, may have forced an adjournment, or otherwise caused delay or side-tracked the hearing. Determination of all such issues was deferred until such time as they arose, but none did.
23.The Tribunal was satisfied that all the parties were afforded procedural fairness at the hearing, and in particular the applicants were not disadvantaged by Mr Boyle's appearance.
THE FACTS
24.The relevant facts are:
a)Each of the applicants was a family group which booked, paid for and attended the tour to North America including Canada and the United States East Coast from 23 December 2012 to 1 January 2013 (the Tour) and a side trip for some to the US West Coast from I January 2013 to 12 January 2013 (West Coast Tour);
b)Some of the applicants did not go on the West Coast Tour which was the subject of another claim for compensation;
c)The costs included pre-paid 'tips' calculated at US$8 per day per person for the applicants and their family group members;
d)The respondent was a licensed travel agent who promoted and organised the Tour;
e)The respondent provided a Tour brochure in the English and Chinese languages promoting the Tour and identifying the sites to be visited. The respondent conceded that there were differences between the English and Chinese language versions;
f)Some of the applicants also joined a West Coast (United States) tour extension, and were offered a partial refund which some accepted and one did not;
g)The respondent provided a detailed Itinerary which relevantly included the following terms and conditions:
"Important Notice:
...
3. The itineraries are subject to change upon local arrangement...
7. Tour Guide & Driver Tips: USD8.00 per person per day (paid in Australia)"
h)There was a written agreement between each of the applicants and the respondent for the Tour which includes "Terms and conditions for joining tour" relevantly including:
"Please read these Booking Conditions carefully as they apply to all booking accepted by Great Wall Travel...It acts only as an agent for those service providers...
Tour Operation
Although GWT will endeavour to ensure that tours are available as advertised, an express condition of making a reservation is the acceptance by the client that tour itineraries and schedules, advertised accommodation, sightseeing programs and modes of transport as outlined in this brochure and our itinerary paper and./or supplied in our pre-departure information are subject to change without prior notice. All travel, coach journeys and other forms of transport and hotel accommodation are provided by independent operators...The itineraries are subject to change upon local arrangement or service provider schedule change.
Items Not included in Your Tour Cost
The tour costs quoted exclude items not specifically referred to in the tour description including, but not limited to...tour guide & driver tips, gratuities...
...
Limit of Liability
To the extent permitted by law, GWT excludes all liability for any loss or damage whatsoever (including but not limited to...psychological injury...or whatever nature) that may arise in any way in connection with the offer or supply of ...services through GWT or any third parties, or in connection with the supply of such...services. If the law implies a condition or warranty that cannot be excluded, GWT's liability for a breach of the condition or warranty will be limited as determined by GWT to the re-supplying the relevant...services.
Events beyond our control: GWT does not accept liability whatsoever for ...loss, delay, additional expenses or inconvenience caused directly or indirectly by any events which are beyond our control including, but not limited to...acts of God.
Law of contract:
These Booking conditions are governed by the laws of Australia and any action arising under them or in any way connected with the holiday may be brought only in a court in Australia, subject to any law which is expressly inconsistent with this."
i)On 23 December 2012 the Tour departed Sydney for New York via Shanghai, arriving in New York the same day at 2:00pm and arriving at the hotel at 4:00pm (crossing the International Date Line provides an additional day on eastward journeys);
j)The applicants met the local tour guide arranged by the respondent, Mr Allen Hsu;
k)The land sector of the Tour was provided by Mr Hsu, local bus operators and local hotels;
l)The bus tour to Quebec commenced on 29 December 2012 but was abandoned by Mr Hsu as the road conditions were very bad and unsafe arising from bad weather and a snow storm;
m)The tour to the Empire State Building was scheduled for 30 December 2012. When the bus arrived on site in Fifth Avenue at about 5.20pm for this tour, there was a long queue and Mr Hsu recommended the applicants should not wait in the cold. He offered an alternative bus tour to the Port of New Jersey to see the night lights of New York. The applicants agreed to this recommendation, and the bus took them on this alternative tour. There was evidence that some other participants (but not the applicants) on the tour arranged a private visit to the Empire State Building themselves a day or so later. Mr Hsu refunded US$40.00 of the entry fee and retained US$3.00 per passenger to tip the driver for the bus tour to the Port of New Jersey as this involved additional driving for the bus driver;
n)On the morning of 31 December 2012 the bus tour took the applicants to see the Bull Sculpture on Broadway. Mr Hsu explained that the Bull is not in Wall Street but on Broadway. There was no other trip to Broadway during the tour;
o)Mr Hsu offered to arrange an optional side tour for any of the applicants who wished to attend a Restaurant called "Applebees" which was very close to Times Square where the New Year's Eve "Ball" would drop at midnight. The cost was US$300.00 per person for which a buffet meal was provided with the convenience of a restroom and waiting inside for midnight, out of the cold. Some of the applicant's accepted this offer;
p)On the evening of 31 December 2012 the bus tour went to Times Square to drop off those going to the Applebee restaurant, before continuing on to Chinatown with those who were not going to Applebee. There was no other trip to Times Square. The applicants who went to Applebees later complained that it was not necessary to pay any fee to attend Times Square for the New Year's Eve celebration;
q)The tour to MoMA could not take place as the tour days in New York were a week apart and both occurred on Mondays 24 and 31 December 2012, being the only day of the week that MoMA was closed. There was no later trip to MoMA;
r)The tours to the United Nations and Rockefeller Centre could not be provided as these sites were inaccessible as a result of traffic control. There was no later trip to these sites;
s)After the applicants returned to Australia, the respondent offered a partial refund to applicants of the West Coast Tour, all but one accepted and signed an "Acknowledgement" which relevantly provides:
"...I have received USD ...as full and final settlement of my dispute with Great Wall Travel Service Pty Ltd in relation to the arrangement of my West USA Tour from 1st January 2013 to 11 January 2012.
...I will forego all further claims against Great Wall Travel Service Pty Ltd and undertake not to make any claims against the Great Wall Travel Service Pty Ltd. I will accept this payment as full and final settlement ...
(emphasis added)
eg, one of the "Acknowledgements" is in English, and signed for the Zhi Fen Dai Family and dated 26 February 2013."
CONTENTIONS
Applicants
25.The applicants contend that the respondent's services contravene the statutory obligations in ACL s 60 - not provided with due care and skill; and ACL s 61 - fitness for a particular purpose etc. There are six particulars of claim:
- Cancelled trip to Quebec;
- Not visit the Empire State Building;
- Applebee count-down party fee unnecessary;
- No visit to Metropolitan Museum, United Nations, Rockefeller Centre, Fifth Avenue, Times Square and Broadway;
- West Coast tour guide not licensed;
- Described each of the individual complaints as "truly our first serious complaint".
Respondent
26.The respondent disputes the applicants' contentions. It says that it was an agent and apart from the abandoned bus trip to Quebec where the driver made a decision based on safety, all other variations were discussed with the applicants who agreed with Mr Hsu's recommendation, and the sites were visited. The respondent also says it is entitled to rely on the terms and conditions of the agreement with the applicants to limit its liability.
THE LAW
Consumer claims and powers of the Tribunal
27.The Tribunal's power arises under the Consumer Claims Act (CCA) and the ACL. CCA s 3 broadly defines "consumer" as a person or entity, and a 'consumer claim' is a claim for payment of money. "Services" is defined as including any rights, benefits, privileges or facilities that are, or are to be, provided, granted or conferred in trade or commerce; and "Supply" means in relation to services, provide, grant or render services for valuable consideration under a contract or for valuable consideration claimed to have been agreed to under an alleged contract. "Trade or commerce" includes any business or professional activity. By CCA s 4 (Persons presumed to be consumers) the applicants are presumed to be consumers until the contrary is proved, and in any legal proceedings (including proceedings before the Tribunal), the onus of proving that a person who claims to be a consumer is not a consumer is on the respondent. By CCA s 8 (Tribunal orders) the Tribunal has power to make an order that requires the respondent to pay an applicant (referred to as a claimant) an amount of money.
Cause of action
28.The applicants must have a cause of action and in this matter ACL ss 60 and 61 operate.
Due care and skill
29.ACL s 60 (Guarantee as to due care and skill) provides:
If a person supplies, in trade or commerce, services to a consumer, there is a guarantee that the services will be rendered with due care and skill.
30.Due care and skill is a common law duty now given effect as a statutory consumer guarantee in every consumer contract. Where the respondent fails to exercise due care and skill amounting to a breach of the statutory duty, the respondent is liable in damages or compensation for loss and damage suffered by the applicant. Loss and damage is categorised as "economic loss" and "non-economic loss" including ACL s 13 (Loss or damage to include injury).
31.The question is whether the respondent has contravened this guarantee.
Cancelled trip to Quebec
32.The bus tour claim is framed as disappointment arising from the coach trip to Canada being started but discontinued during the journey as the driver decided that the snow and weather conditions prevented a safe trip and he had a higher priority to keep the applicants safe. This is clearly a decision which Mr Hsu was entitled to make and had a duty to make as to do otherwise might have given rise to a tort claim if there had been an accident resulting in injury or death of any of the applicants. This was not a decision made by Mr Hsu the local guide, and not by the respondent. It was a prudent decision, and the claim cannot succeed under ACL ss 60 or 61.
33.This claim is put alternatively on the basis that the inclusion of this bus trip in the pre-tour material and itinerary was misleading and deceptive within ACL s 18 as the respondent should have known the risk of adverse snow conditions at the relevant time of the year, and this bus trip should not have been offered as part of the tour. I reject this claim as no-one could know when the tour was offered by the respondent that there would be weather and snow on the relevant tour day which would cause this tour to be abandoned after it had commenced.
Empire State Building claim
34.This claim is put on two bases. Firstly that the tour of the Empire State Building was cancelled by Mr Hsu, the local tour guide. This is not strictly correct as the evidence is that there was a long queue and Mr Hsu discussed this with every one of the tour, including the applicants, and everyone accepted his recommendation to go for an alternative bus tour to see the night lights of New York from the Jersey Shore. Having accepted the recommendation the applicants cannot now complain about their choice. This is not something for which the respondent can be liable as it was a local decision made by Mr Hsu with the applicants, and did not involve the respondent. In addition, there was evidence that some of the other persons on the tour obtained their tickets from Mr Hsu and visited the Empire State Building in their own time. This claim is rejected.
35.Second, the applicants say they were cheated as they had paid US$43.00 for entry to the Empire State Building and Mr Hsu only refunded US$40.00 telling them that the balance of US$3.00 would be paid as a tip to the bus driver for the alternate trip to the Jersey Shore. Again the evidence is that the applicants did not object to this at the time, it was an arrangement made between the applicants and Mr Hsu, and the respondent cannot be responsible for this decision. The applicants received the benefit of the bus trip to the Jersey Shore. This claim is rejected.
Applebee count-down party fee unnecessary
36.This claim is put on the basis that the additional fee of $300.00 for the Applebee restaurant was not necessary as there was free entry to the New Year's Eve event. The applicants who paid this amount claim a refund.
37.This was an optional extra tour offered by Mr Hsu in which the respondent played no part. Those who paid enjoyed the convenience of the buffet meal, access to restroom convenience, and shelter from the outside cold air during the wait of several hours for New Year's Eve. The evidence was that there were an estimated one million people in the area and attendance at the Applebee restaurant gave them attendance at the event without any of the inconvenience of the weather or crowd. This claim is rejected.
No visit to MoMA, United Nations, Fifth Avenue, Rockefeller Centre, Times Square and Broadway
38.These are all iconic New York sites. The applicants travelled from Australia. It was most probably a "once in a life-time" opportunity for them to visit these sites.
39.MoMA was closed on Mondays. The only days on which the applicants could visit MoMA were on the Mondays of 24 and 31 December 2014. This was the responsibility of the respondent to know and schedule the tour for a day MoMA was open. The respondent did not exercise due care and skill in scheduling the tour so that the applicants could visit MoMA. This claim succeeds under ACL s 60.
40.Access to the United Nations was not possible for the scheduled days as the area was the subject of traffic restrictions for New Year's Eve. This was the responsibility of the respondent to know and schedule the tour appropriately. This claim succeeds under ACL s 60.
41.The evidence supports the applicants' claim that they did not have an opportunity to visit Fifth Avenue on a guided tour, to enjoy what was promoted in the brochure as including "...the surrounding shopping district...where cutting edge fashion and luxury brands reside." The bus went to the Empire State Building about 5.20pm and they were given about two hours free time to explore Fifth Avenue until about 7.15pm to sight-see and have dinner. As I understand the complaint, they did not receive a guided tour. This is to be considered in the circumstances of the applicants: they were non-English speaking foreign tourists in New York. An unescorted tour for two hours in their own time might be acceptable to English speaking foreign tourists to explore on their own, but this is not what was promoted. The respondent had the responsibility to exercise due care and skill in organising a tour to Fifth Avenue which took account of the applicants' circumstances, and to provide a tour. This claim succeeds under ACL s 60.
42.There was also no tour to the Rockefeller Centre. This was the responsibility for the respondent to schedule. The applicants' claim under ACL s 60 succeeds.
43.The applicants claim they did not have a tour of "the bright lights of Times Square" as stated in the brochure. The evidence is that on 31 December 2013 the applicants were given an opportunity to go to Applebee's restaurant at Times Square if they paid US$300.00, but most chose to go to Chinatown. The respondent had the responsibility to exercise due care and skill in organising this tour, and this was not a visit to Times Square as described in the respondent's brochure. The applicants' claim succeeds under ACL s 60.
44.The trip to Broadway was not consistent with the respondent's brochure: "The tour continues to...the Broadway Theatre District...". Mr Hsu took the applicants to see the Bull Sculpture on Broadway, explaining that it was on Broadway and not actually on Wall Street. This was not a tour to the Broadway Theatre District as described in the respondent's brochure. The respondent had the responsibility to exercise due care and skill in organising this tour. The applicants' claim succeeds under ACL s 60.
West Coast tour guide not licensed
45.The applicants who claim for the West Coast Tour do so on the basis that the tour guide failed to provide basic services such as meeting them at the airport so they were left to find their own way to their hotel, and that various tours were not provided. These claims succeed under ACL s 60.
Labelled each of the individual complaint as "truly our first serious complaint".
46.This claim is rejected as it does not provide a cause of action for the applicants from conduct before and during the tour. It arises after return to Australia and is not of any probative value, and was said by the respondent during negotiations with the applicants.
Other claims
47.When the applicants served their evidence, there were numerous additional claims to the claims identified in their applications, including for example, a claim for disturbed sleep at a hotel arising from the conduct of third parties in an adjoining room; other tours to various sites did not occur. I have considered these claims although they were not originally identified in the applications. They are included in the damages assessment but do not increase the claims.
Fitness for a particular purpose
48.ACL s 61 (Guarantees as to fitness for a particular purpose etc) adds nothing to the applicants' claims which already arise under ACL s 60, and is not considered further.
Limiting liability
49.The issue is whether the respondent's contractual terms clause 28 enable it to avoid or limit liability to the applicants.
50.Generally, terms that limit liability are distinguished from terms that exclude liability. The former are permissible pursuant to ACL s 64A (Limitation of liability for failures to comply with guarantees) where the liability is limited to supplying the services again, or payment of the cost of re-supply of the services ACL s 64A(2) but the latter are void: ACL s 64 (Guarantees not to be excluded etc. by contract).
51.The respondent relies on the terms of the Agreement, clause 28 disclaimer to exclude liability where it may, and to limit its liability where it cannot exclude liability.
52.The respondent's clause "Limit of Liability" (see above) limits its liability to a resupply of the relevant services. However, this limitation is clearly not practical as a re-supply of the services which were not provided arises from the absence of guided visits to Quebec and a number of New York sites. To provide this remedy, the respondent would have to fly the applicants back to New York, put them in accommodation and provide the relevant tours. Alternatively, to get this remedy, the applicants would have to make their own arrangements to fly themselves to New York. The West Coast Tour has similar problems. This problem arises because the respondent did not contractually provide for both options available in ACL s 64A, as it could have provided for payment of the cost of re-supply of the services: ACL s 64A(2). Nevertheless, ACL s 236 entitles the applicants to a remedy in damages.
53.To require the respondent to pay the cost of flying the applicants back to New York with accommodation etc in order to re-supply the services would result in an over-compensation of the applicants. To require the applicants to pay their own way to New York would result in an under-compensation. The better course is to assess the damages suffered by the applicants and order the respondent to pay that amount to them, consistent with the formulation in ACL s 64A(2).
54.Before dealing with damages, the effect of the "Acknowledgement" signed by some of the applicants on the West Coast Tour is to be considered.
The Acknowledgement
55.Some of the West Coast Tour applicants signed a document entitled "Acknowledgement" which appears to be intended as a form of release in favour of the respondent against further claims by the applicants who signed it.
56.However, the "Acknowledgement" is defective in its identification of the claims which the release operates as it relates to a nonsensical date range: "from 1st January 2013 to 11 January 2012". This document was not the subject of an application for rectification. It is meaningless and has no operation. I have disregarded it.
Circumstances in which the claims arise
57.It was apparent at the hearing that the applicants felt at a disadvantage as non-English speaking foreign tourists in New York. They expressed their vulnerability to exploitation as a result of the extra and costly tour to "Applebees" being offered by Mr Hsu, and the tipping culture prevalent in the United States. They had lost confidence and trust in Mr Hsu and as a result, the respondent. There is no doubt that the respondent was aware that the applicants were of Chinese ethnicity as the tour was promoted in the Chinese language. Mr Hsu spoke Chinese (it is not clear whether Cantonese or Mandarin), and most of the applicants required the assistance of an interpreter at the hearing as they were not confident in the English language.
Damages
58.The applicants claims succeed in part, and they claim damages. ACL s 236 (Actions for damages) relevantly provides:
(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...
59.The respondent's conduct giving rise to the applicants' claims arises under ACL s 60 which is in chapter 3 - Specific Protections.
60.The applicants' claim arises from the conduct of the respondent which contravenes ACL s 60. The respondent's conduct does not have to be intentional. It is sufficient that the respondent's conduct falls short of a reasonable standard of care, and includes matters where there was neither want of care or intention to harm: I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41; 210 CLR 109 at [43] per Gaudron, Gummow and Hayne JJ referring to the previous Trade Practices Act 1974 (Cth) s 82 which now appears as ACL s 236. The respondent contravened ACL s 60 as discussed above.
61.The measure of damages under ACL s 236 is required to conform to the remedial purpose of the section, and the justice and equity of the claim. ACL s 236 has five elements: Marks v GIO Australia Holdings Ltd [1998] HVA 69; 196 CLR 494 per Gleeson CJ; the legal norms arising from the contravention; who is liable; the injury for which damages are payable; a causal connecting the loss to the conduct; and the damages are "the amount of the loss". The measure of damages arises under ACL and is not governed by common law measures though assistance may be found there: Henville v Walker [2001] HCA 52; 206 CLR 457. Damages can include economic and non-economic loss: see ACL s 13 (Loss or damage to include injury) which provides for damages for injury loss, such as disappointment, subject to operation of the Civil Liability Act, discussed below.
62.In this matter, the applicant's economic loss arises as they sustained a prejudice or a disadvantage whilst on the tour: see Wardley Australia Ltd v Western Australia [1992] HCA 55; [1992] 175 CLR 514; Murphy v Overton Investments Pty Ltd [2004] HCA 3. It is a matter of common sense that the applicants would not have paid for a tour organised by the respondent if they had known that the iconic New Your sites would be omitted from the tour, or that they would not visit these sites as part of the tour, being left to their own devices. They would have acted in a different way which would have been of greater benefit to them, for example, by taking a different tour with either the respondent on different dates, or with a different tour operator, so that they visited all these missed iconic New York sites.
63.Damages under ACL s 236 are to be awarded by reference to a solution best adapted to give the applicants damages which will most fairly compensate them: Johnson v Perez [1988] HCA 64; 166 CLR 351.
64.There is uncertainty as to the applicants' loss and damage, but nevertheless the tribunal must do the best it can: Biggin & Co. Limited v. Permanite Limited (1951) 1 KB 422, at pp 438-439 per Devlin J (as he was); by forming what was described in Callaghan v William C Lynch Pty Limited (1962) NSWR 871 at p 877 as:
"...conclusions on matters, on slender material; and to make allowance for contingencies, even to the extent of guess-work or speculation...many cases illustrate that uncertainty in the quantification of damage, either in cases of contract or tort, does not prevent an assessment; provided that some broad estimate can be made."
65.These principles were approved in Enzed Holdings Ltd v Wynthea Pty Ltd [1984] FCA 373; FCR 450 at [68]:
"The principle is clear. If the Court finds damage has occurred it must do its best to quantify the loss even if a degree of speculation and guess work is involved. Furthermore, if actual damage is suffered, the award must be for more than nominal damages. We should add that we can see no reason why this principle should not apply in cases under the Trade Practices Act as well as in cases at common law. We emphasise, however, that the principle applies only when the court finds that loss or damage has occurred. It is not enough for a plaintiff merely to show wrongful conduct by the defendant."
66.The applicants have suffered economic loss as not everything they paid for was delivered, as discussed above. There is no clear evidence of the cost of the individual components or sectors of the tours not delivered, but doing the best I can, I assess the economic loss at US$100.00 per person.
67.Applying the same principles to assessment of the economic loss for the west Coast Tour, I assess these losses at US$60.00 per person, from which is to be deducted amounts already paid by the respondent.
Disappointment damages and the Civil Liability Act (NSW) - claim arising overseas
68.The applicants have also framed their claim as a loss for what are known as disappointment damages.
69.Disappointment damages are non-economic loss suffered by a person arising from the respondent's conduct which causes what is known as "pain and suffering" including anxiety, disappointment, distress, grief, and inconvenience: Insight Vacations Pty Ltd v Young [2010] NSWCA 137; 78 NSWLR 641; and on appeal [2011] HCA 16; and Flight Centre v Janice Louw [2011] NSWSC 132 at [31] per Barr J. These damages are available under ACL s13 (Loss or damage to include injury).
70.Consumer travel claims were previously brought under the Trade Practices Act 1974 (Cth) (TPA) until 31 December 2010 when that Act was repealed, and thereafter are brought under the Australian Consumer Law (NSW) (ACL) which commenced on 1 January 2011 as the law of NSW and provides the applicants' cause of action and remedies.
71.In a TPA s 74 claim, the Civil Liability Act 2002 (NSW) (CLA) had no application as the TPA s 74(2A) did not pick up and apply the CLA as a surrogate federal law: Insight Vacations [2011] HCA 16 at [26]. Since then, both the ACL and CLA are the law of NSW and ACL applies to non-economic loss claims for injury under ACL s 13 (Loss or damage to include injury).
72.However, the CLA has no extra-territorial operation: Insight Vacations HCA at [16]; so that CLA s 5N only applies to contracts for the supply of recreation services in NSW and not to services supplied outside NSW: Insight Vacations HCA at [9]. The respondent's services resulting in disappointment were provided to the applicants in the United States and Canada.
73.There is a further issue, as the High Court commented in Insight Vacations at [19] although it noted that the question did not have to be decided in that case, the provision of transport services in the course of tourism would be the supply of services in connection with or incidental to the recreational activity of tourism as an "activity engaged in for enjoyment, relaxation or leisure". Applying this to the current matter, the respondent's tour services were supplied in connection with or incidental to the recreational activity of tourism in that sense.
74.There is no longer any need for the CLA to be picked up as a surrogate federal law as ACL is a law of NSW: FTA s 28 (Application of Australian Consumer Law); but CLA continues to have no extra-territorial application to the supply of recreation services supplied outside NSW, which in these matters, were provided in the United States and Canada.
75.On this reasoning, CLA does not apply to these claims and the applicants are entitled to succeed for disappointment damages.
76.However, the disappointment is limited to the absence of the missed site tours in New York, and in this matter I assess the disappointment damages on the same basis as the economic loss and the amount is the same. The applicants can only get their damages once and there is no additional amount for the disappointment damages as they have been compensated for as economic loss above.
77.Similarly, there are no additional disappointment damages for the West Coast Tour.
CONCLUSION
78.The applicants are entitled to the damages in the orders.
(signed)
JA Levingston
General Member
Civil and Administrative Tribunal
15 April 2014
I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.
Registrar