Moore v Scenic Tours Pty Limited (No.3) [2017] NSWSC 1555

Moore v Scenic Tours Pty Limited (No.3) [2017] NSWSC 1555

Scenic provided recreational cruise services, information services and management services subject to Australian Consumer Law consumer guarantees, including for cruises performed partly outside Australia. Given Scenic's knowledge of flooding and disruption, its failures for identified cruises to warn, cancel, or offer cancellation or other options constituted non-compliance with the guarantees in the respects stated in the common answers. Scenic could not avoid liability by relying on independent causes, service providers, nautical partners, or the identified standard terms. The plaintiff was entitled to judgment against Scenic in accordance with Moore (No.2), and the answers were common...

Jurisdiction
Australia
Judgment Date
15 November 2017
Procedural Posture
Civil Representative Action / Procedural Ruling Determining Answers to Common Issues After Substantive Judgment
Outcome
Common questions answered; plaintiff entitled to judgment against the defendant in accordance with Moore v Scenic Tours Pty Ltd (No.2) [2017] NSWSC 733.
Legal Topics
['representative Proceedings' 'common Issues' 'australian Consumer Law Consumer Guarantees' 'recreational Services' 'river Cruise Disruption' 'failure to Warn' 'failure to Cancel or Offer Options' 'contractual Exclusion and Limitation Clauses' 'compensation for Disappointment and Inconvenience']
['consumer Law' 'civil Procedure' 'contract Law'] ['representative Proceedings' 'common Issues' 'australian Consumer Law Consumer Guarantees' 'recreational Services' 'river Cruise Disruption' 'failure to Warn' 'failure to Cancel or Offer Options' 'contractual Exclusion and Limitation Clauses' 'compensation for Disappointment and Inconvenience']

Case Brief

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Procedural Posture

Civil Representative Action / Procedural Ruling Determining Answers to Common Issues After Substantive Judgment

Legal Issues

  1. 1 ['What services Scenic was required to supply to the plaintiff and group members.' 'Whether the Australian Consumer Law applied to services performed wholly or partly outside Australia.' 'Whether consumer guarantees under ss 60, 61(1) and 61(2) of the Australian Consumer Law applied to the cruises.' 'What Scenic knew before and after embarkation about river levels, flooding and disruption to relevant cruises.' 'Whether Scenic was required to warn passengers, cancel cruises, or offer cancellation or other options before or after embarkation.' 'Whether Scenic failed to comply with consumer guarantees for particular cruises.' 'Whether Scenic could rely on causes independent of human control, service providers, nautical partners, or standard terms to avoid or limit liability.' 'What heads of damage were recoverable under s 267 of the Australian Consumer Law.' 'Whether the answers to common issues were common to group members.']

Ratio Decidendi

Scenic provided recreational cruise services, information services and management services subject to Australian Consumer Law consumer guarantees, including for cruises performed partly outside Australia. Given Scenic's knowledge of flooding and disruption, its failures for identified cruises to warn, cancel, or offer cancellation or other options constituted non-compliance with the guarantees in the respects stated in the common answers. Scenic could not avoid liability by relying on independent causes, service providers, nautical partners, or the identified standard terms. The plaintiff was entitled to judgment against Scenic in accordance with Moore (No.2), and the answers were common...

Court Disposition

Common questions answered; plaintiff entitled to judgment against the defendant in accordance with Moore v Scenic Tours Pty Ltd (No.2) [2017] NSWSC 733.

Orders

  • ['The Court set out the questions and answers with respect to the identified common issues.' 'The plaintiff is entitled to judgment against the defendant in accordance with Moore (No.2).' 'Save to the extent indicated, the answers are common to the claims of group members who resided in Australia and Vanuatu and who...