Kelly v Scenic Tours Pty Ltd [2024] NSWSC 130

Kelly v Scenic Tours Pty Ltd [2024] NSWSC 130

The proceedings were properly commenced under Part 10 of the Civil Procedure Act 2005 because there were more than seven persons with claims against the same person, the claims arose out of the same, similar or related circumstances constituted by the promoted and provided Scenic river cruise experience during the...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
29 February 2024
Procedural Posture
Representative Proceedings Under Part 10 of the Civil Procedure Act 2005 / Interlocutory Notice of Motion Seeking Strike Out and Declarations as to Proper Commencement
Outcome
Defendant's Notice of Motion filed on 1 December 2022 dismissed; costs orders made.
Legal Topics
['commencement Criteria for Representative Proceedings' 'identification of Group Members' 'substantial Common Question of Law or Fact' 'strike Out of Pleadings' 'ambiguity and Embarrassment in Pleadings' 'australian Consumer Law Consumer Guarantees']
['civil Procedure' 'representative Proceedings' 'consumer Law'] ['commencement Criteria for Representative Proceedings' 'identification of Group Members' 'substantial Common Question of Law or Fact' 'strike Out of Pleadings' 'ambiguity and Embarrassment in Pleadings' 'australian Consumer Law Consumer Guarantees']

Source-derived case record

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Procedural Posture

Representative Proceedings Under Part 10 of the Civil Procedure Act 2005 / Interlocutory Notice of Motion Seeking Strike Out and Declarations as to Proper Commencement

Legal Issues

  1. 1 ['Whether the proceedings were properly commenced under Part 10 of the Civil Procedure Act 2005.' 'Whether the claims of group members arose out of the same, similar or related circumstances and gave rise to a substantial common question of law or fact under s 157 of the Civil Procedure Act 2005.' 'Whether the group member definition and particulars in the Amended Statement of Claim were ambiguous, imprecise or embarrassing so as to warrant strike out under r 14.28 of the Uniform Civil Procedure Rules 2005.' "Whether International passengers could be included in the representative proceeding notwithstanding Scenic's contention that they contracted with entities other than the defendant." "Whether there was a basis to declare that the proceeding was not properly commenced except for persons who participated in Mr Kelly's cruise and entered into agreements with the defendant."]

Ratio Decidendi

The proceedings were properly commenced under Part 10 of the Civil Procedure Act 2005 because there were more than seven persons with claims against the same person, the claims arose out of the same, similar or related circumstances constituted by the promoted and provided Scenic river cruise experience during the relevant low-water disruption period, and the pleaded questions included substantial common questions of law or fact, including whether Scenic operated the Cruises, supplied services to group members, and whether the Australian Consumer Law applied to International passengers. The group definition was sufficiently clear, and the challenged phrases in the Amended Statement of...

Court Disposition

Defendant's Notice of Motion filed on 1 December 2022 dismissed; costs orders made.

Orders

  • ['Notice of Motion of the defendant filed on 1 December 2022 is dismissed.' 'The plaintiff is to pay the costs of and occasioned by the filing of the Amended Statement of Claim.' "With the exception of Order 2, the defendant is pay the plaintiff's costs of the Motion of 1 December 2022." 'Each party is to pay his...