CATCHWORDS Trade Practices - holiday in Bali - representations as to transport and accommodation - whether or not arrangements had been made Trade Practices Act 1974, sub-s. 52(1) JOHN RAYMOND STEINER and LYNNE JANINE STEINER v. MAGIC CARPET TOURS PTY LIMITED, FEASTS HOLIDAYS PITY LIMITED, and VALERIE JEAN IRELAND EASTS HOLIDAYS PTY LIMITED - Cross Claimant MAGIC CARPET TOURS PTY LIMITED - First Cross Resp. VALERIE JEAN IRELAND - Second Cross Respondent NO. G 371 of 1984 Coram: Morling, Neaves and Burchett JJ. 21 June 1985 Sydney "4 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. G 371 of 1984 GENERAL DIVISION BETWEEN : AND: AND: ee JOHN RAYMOND STEINER First Appellant LYNNE JANINE STEINER Second Appellant MAGIC CARPET TOURS PTY. LIMITED First Respondent EASTS HOLIDAYS PTY. LIMITED Second Respondent VALERIE JEAN IRELAND Third Respondent EASTS HOLIDAYS PTY. LIMITED Cross Claimant MAGIC CARPET TOURS PTY. LIMITED First Cross Respondent VALERIE JEAN IRELAND Second Cross Respondent ORDER JUDGES MAKING ORDER Morling, Neaves and Burchett JJ. DATE OF ORDER : 21 June 1985 WHERE MADE : Sydn2y THE COURT ORDERS THAT: 1. Appeal dismissed. ae The appellants to pay the respondents' costs. Note: Settlement and entry of orders 15 dealt with in Order 36 of the Federal Court Rules. ty , IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION MORLING J. BETWEEN : AND: AND: No. G 371 of 1984 we wrens JOHN RAYMOND STEINER First Appellant LYNNE JANINE STEINER Second Appellant MAGIC CARPET TOURS PTY. LIMITED First Respondent EASTS HOLIDAYS PTY. LIMITED Second Respondent VALERIE JEAN IRELAND Third Respondent EASTS HOLIDAYS PTY. LIMITED Cross Claimant MAGIC CARPET TOURS PTY. LIMITED First Cross Respondent VALERIE JEAN IRELAND Second Cross Respondent 2l June 1985 REASONS FOR JUDGMENT The judgment of the Court was delivered by: MORLING J: judge ar 7a the appellants appeal against a cecifion of a court dismissing a claim brought by them against the respondents for alleged breaches of sub-s. 52(1) of the Trade Practices Act. The substance of their claim at the trial was that the respondents, or some of them, represented that arrangements had been made for their transport from Denpasar Airport to, and accommodation at, a holiday resort known as the Mandala Bungalows on the island of Bali and that these represent- ations were false as no such arrangements had in fact been made. The making of the representations was claimed to constitute conduct proscribed by sub-s. 52(1) of the Act. They sought damages for out-of-pocket expenses and also for compensation for distress caused to them, particularly to the female appellant. The learned trial judge dismissed the application. He heid that on the evidence the proper conclusion was that the relevant arrangements had in fact been made and that therefore there was no misleading or deceptive conduct. The real issue between the parties 15 whether the representation that the respondent Magic Carpet Tours had made the arrangements on behalf of the apppellants was in fact false. There was evidence before the trial judge from a witness, Mrs Ireland, that 1t was the practice of Magic Carpet Tours to handle transport and accommodation bookinas simultaneously so as to ensure that neither «was completed until tne other was fcund to be available. She produced 3 frie card which accorded 3. with this practice. She also produced a document which was part of a running file which contained a series of entries addressed to Mr Rai Dalem. One of those entries purported to record a reservation on behalf of Mr and Mrs Steiner at Mandala Bungalows. Mr Dalem was the proprietor of Mandala Bungalows. The evidence established that over a number of years he had acted as agent for Magic Carpet Tours in arranging accommodation at various hotels in Bali. Mrs Ireland gave evidence that one of the documents which she produced was the original reservation letter returned at her request by Mr Dalem and bearing his handwritten notes. There was an entry on it relating to the Steiners and 1t corresponded with a document on her file. Mrs Ireland also produced a photocopy of a letter from Mr Dalem confirming a number of bookings made on behalf of a number of people, including Mr and Mrs Steiner. She said that the original would have been cut up and sections attached to various files. The entry which related to the Steiners was not in fact on the Steiners' file. However. his Honour accepted a statement made by Mrs Ireland in evidence that the entry relevant to the Steiners may well have come adrift in the two years since it would have been attached to their file. His Honour was of the view, with vhich we agrees, that if 'the documents ar2 genuine, they establisn witno.t any douct 4. that a booking was transmitted to and confirmed by Mandala Bungalows. Counsel for the appellants submitted at the trial that his Honour should reject the documents and should regard them as being documents manufactured for the purpose of the case. His Honour rejected that submission and 1t was not renewed before us. His Honour concluded that the proper conclusion from the evidence was that a reservation was in fact made by Magic Carpet Tours on behalf of Mr and Mrs Steiner. We agree with that conclusion. It would appear that his Honour took the view that the evidence established that Mandala Bungalows were to arrange for the transport from Denpasar Airport of guests intending to stay at the bungalows. A reading of the evidence confirms us also in this view. We therefore think that the proper conciusion 1s that not only was a reservation for the Steiners' accommodation made by Magic Carpet Tours but a reservation for their transport from the Denpasar Airport to the bungalows was also made. Counsel for the appellants submitted both to his Honour and to us that even if Magic Carpet Tours had vrequested Mr Calem to make the <celevant reservations, they were entitled to succesd in tre acticn if Mr Dalem w had failed to make an appropriate notation in the reservation book of the Mandala Bungalows because he was acting as anagent for Magic Carpet Tours. We reject that submission and for the same reason given by his Honour in his judgment. We agree with his Honour's observation that, whatever his capacity in relation to other hotels, Mr Dalem was the principal of Mandala Bungalows. It 1s plain from the evidence to which we have already referred that firm arrangements had been made with Mandala Bungalows and therefore the statement made by Magic Carpet Tours that accommodation had been arranged was not misleading or deceptive. For these reasons we think the appeal should be dismissed. We should add that during the course of argument counsel for the appellants submitted that his Honour ought to have found Mrs Ireland rather than Magic Carpet Tours responsible for any damages sustained by his clients. Because no breach of 35.52 of the Trade Practices Act was established we do not need to deal with that matter. In the result, the Court 1s of the opinion that the appeal should be dismissed with costs and we so order. SU piccen og rec3es for " aa ran Rartoh. oman' se ASSOCLate