aa tN tent Oe nea re nee ee tele aetna fat teers + ae ee eek eee PRINC (PAL REGISTRY No7 Fork GENERAL DISTRIBITION. uh = IN_THE FEDERAL COURT OF ANSTPALTA NEW SOUTH WALES DISTRICT REGISTFY GENERAL DIVISTON BETWEEN: GERALD ISAAC MOSES First Applicant LINDA ELIZABETH MOSES Second Applicant THOMAS cQQK PTY. LIMITED First Respondent LEE ENTRPPRISES FIY.LIMITED blas TAMPIS TRAVEL Second Respondent 7.7. (3) NOMINEES FTY. LIMITED tfas TOKKU HOTELS INTERNATTONAL Third Respondent MINUTE OF ORDER JUDGE: FOX J. DATE OF ORDER: 6 DECEMBER 1985 WHERE MADE: SYDNEY. THE COURT ORDERS THAT: 1. The motion be dismissed. 2. The first respondent pav the applicants' casts of todav's hearing and preparation therefor. wee ee ie ee eee - - --- de on tem etre tee EN LL tt me nd ee ne an aemitee Balen Ge lata sete ee Wels en lee ae ad fat 3. 4, Note: ' iw ' The exhibits be returned. The matter stand over until Fridav 13 December directions. Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. for Deena tet atrmenannptent teemnanatndahtttnrin, paws IN_THE FEDERAL COURT OF ANSTRALTA NEW SOUTH WALES DISTRICT PEGISTRY GENERAL DIVISTON pat nnd Et nar All Rk i en el tl ) ) \ No.G1l59 of 1985 U ) BETWEEN : GERALD ISAAC MOSES First Applicant LINDA ELIZABETH MOSES Second Applicant AND: THOMAS COOK PITY. LIMITED First Respondent LEE ENTERPRISES PTY, LIMITED t/as TAURIC TRAVEL Second Respondent TV. (0) NOMINEES PIY. LIMITED tias TOFYU HOTELS TNTERNATTONAL Third Respondent TORAM: FOX J. DATE: 6 DECEMBER 1985 REASONS FOR JUDGMENT EX TEMPORE EOX J. This is an application by the first respondent in proceedings broucht under s.52 of ween wy ee Meme prereset nmi DN ap ehyag ma etn NS rme mme e e SS one ante mateyimirs ene Sw ween the Trade Practices Act 1974. maa - al = vee 2 * . ' + = ' cei centering am tt Kedah! pains tn titan yee ev ecenteeent tm Mitee (ree Reet eee ne ME tebe heme eI EIN ee ne im ee ee Bee ea tee teat A a eee The matter has already been 'before the court twice for directions. On an earlier occasion the statement of claim was found to be quite defective and recently an amended statement of claim has been filed to which no obiection has been taken. The application is made under Order 20 rule 2 and not in reliance upon Order 11 rule 16, which is the provision upon which reliance was originally placed' in the notice of motion which is now said to be before me. However, no obtection is taken to the informalitv and I now regard myself as considering the notice of Motion as one under the Order and rule which T have first mentioned to dismiss the proceedings as against the first respondent. The second and third respondents have appeared before me by counsel. The second respondent. in anticipation of the araquments to be addressed to me bv counsel for the first respondent, sought leave todo at an early stadqe, and he was excused. Counsel for the third respondent has remained but has contented himself with saving that he also concurs with the arguments put by the first respondent. Strictlv speaking, the position as I understand it. and as I understand counsel have agreed, 1s that the second and third respondents are not parties to this notice of motion. The issue comes dawn toa verv fine one indeed. The first respondent, a very well known travel agency, in a brochure — tea ere Le spree = —— weeynennnn Se eee ee . nee we = tmnt emtntentee Senecio re ment Wasdilernmbonet wh tee eealh mt mae ee relating to Vanuatu, Tahiti and other 'South Pacific islands. said that certain recreational sailing equipment, known as a Hobicat, was to be supplied or would be supplied free of charge by a hotel which was advertised in the brochure. What happened, as the evidence so far discloses, is that co fam D)) Hobicat was taken out bv the applicants. It ran into what was called in the applicant's evidence a freak wind squall. It was thus driven onto some racks and damaaced. Subsequently the awners of the craft, who were also, as I understand, the owners of the hotel, sought payment for the damace from the applicants. As thev were about to leave the island. they were compelled to pav the amount, over protest. The amount is a small one. about $1250. It is not clear from the evidence whether it was alleqed by the owners of the Hobicat that the applicants or one of them had been neqligent. Whatever was the proper basis of the claim, it seems to have been at all events assumed on the part of some that thev had a liability to pay the amount. Whether they did have such a liability is not clear. The evidence which has been tendered bv the applicant on the present motion, that is to sav, the first respondent. 15 @ Pad a lusivelvy that prepared and filed on behalf of the applicants, and counsel for the applicants has said that the material ed eR Ree Re a ee ren nny eee a ei .. errr tte ihe eat ht Ski Rt Lianne an Ste elie leanne an ath oemehb armas e he tetera aurtny ately tentmah imate sharmatint Sihenanir ae nme iene Mmmm . eet een aan OR Se nT Cr Cte i A oe a cc eo Te ee eee eee eer "se contained in those affidavits constitutes "the-whole of the conduct relied upon in their action. so far at least as it concerns the first respondent. Tt does seem to me. however, that there is a real guestion as to whether counsel for the applicants in the proceedings, that is, the respondent to the present motion, is correct when he savs that this accident to the Hobicat was just an incident in its use. It mav be. as I have already indicated, that damage flowed from the neqligence of the first applicant. The question. as I have indicated, turns around the meaning of a few words in the brochure. and. more particularly, their application in this case. The cases show that an action should not he dismissed summarilv unless the case made for its dismissal 15 virtually so clear as to be bevond arqument. In the present case I do not want to sav anvthing about the facts or the merits on one side or another. Mv conclusion is that there is not a case for dismissal ef the proceedings at this stage. I therefore dismiss the present application. I will hear counsel on costs. a ee nel I certify tru vhis and ve ore (3) net s ace &@ T2239 SONY of tne = , uonour fore nm e.> Tuugnent nere-n of hib Ie hpat. Lane Associate . BEE 6 Decembss [968° ro = K ao eS. ui o ' —_— —~e . ae pre eee tee tee ee owe a ee were nmr ee ee ete ee wee