Moore v Scenic Tours Pty Ltd (No.6) [2023] NSWSC 948

Supreme Court New South Wales

Medium Neutral Citation: Moore v Scenic Tours Pty Ltd (No.6) [2023] NSWSC 948 Hearing dates: 14 July 2023 Date of orders: 14 July 2023 Decision date: 14 July 2023 Jurisdiction: Common Law Before: Garling J Decision: See [19] Catchwords: CIVIL PROCEDURE — Representative proceedings — Settlement — Court approval — Protracted proceedings involving claims by passengers on a series of cruises in Europe — Proceedings the subject of multiple appeals which are now finalised — Parties agreed to Short Minutes of Order with respect to the proposed settlement, including a Distribution Scheme — Settlement approved with amendments to the orders relating to the Distribution Scheme Legislation Cited: Civil Procedure Act 2005 Cases Cited: Not Applicable Texts Cited: Not Applicable Category: Procedural rulings Parties: David Moore (P) Scenic Tours Pty Ltd (D) Representation: Counsel: N Li (P) D Weinberger (D)

Solicitors: Somerville Legal (P) SWS Lawyers (D) File Number(s): 2014/223271 Publication restriction: Not Applicable

EX TEMPORE JUDGMENT 1. Before me today is an application to approve a settlement, pursuant to s 173 of the Civil Procedure Act 2005, to approve settlement of these representative proceedings. The parties have agreed a set of Short Minutes of Order which contemplate the settlement and a number of related matters.

Background 1. It is important to first briefly recount the protracted history of these proceedings. In 2014, a representative action was commenced in this Court by Mr David Moore on behalf of himself and a group of passengers ("group members") who had embarked on one of a series of cruises on rivers in Europe operated by Scenic Tours ("the defendant"). The nature of the proceedings, and the entitlements of Mr Moore and the group members, have been the subject of two judgments of substance by me sitting as a trial Judge, two judgments of substance by the Court of Appeal, and one judgment by the High Court of Australia. All of the facts surrounding the causes of action have been described in those judgments and need not be repeated here. 2. The entitlements of Mr Moore and the group members have as a consequence of those judgments, been clarified. 3. By reference to each cruise, the judgments have determined that the group members did not receive the true value of the services for which they had paid when booking the cruise. A calculation is capable of being made, and has been made, by reference to the amount which represents the lost value for each passenger on each cruise. 4. As well, it has been held that Mr Moore and each group member is entitled to damages for disappointment and distress as a consequence of the adverse experience which they severally had on their cruises. 5. Because each of the ten cruises (in respect of which orders in favour of the group members have been made) had variable experiences in terms of the extent of the interruption of those cruises, the damages for distress and disappointment will vary from cruise to cruise. 6. As the Court's previous judgment has shown, it may be that within each cruise, depending on the particular subjective circumstances of one or another passenger, the amount of damages for distress and disappointment may vary. However, a mean figure for damages for distress and disappointment has been calculated for each cruise and the proposed settlement, which I will shortly describe, takes that mean figure into account in assessing the damages sum.