Supreme Court New South Wales Medium Neutral Citation: Kelly v Scenic Tours Pty Ltd [2024] NSWSC 130 Hearing dates: 04 April 2023 Date of orders: 29 February 2024 Decision date: 29 February 2024 Jurisdiction: Common Law Before: Garling J Decision: See [124] Catchwords: CIVIL PROCEDURE – Representative proceedings – Criteria for commencement – Group members – Identification – Whether proceedings were properly commenced under Part 10 of the Civil Procedure Act 2005 – Whether the group members' claims involve the same, similar or related circumstances and whether the claims give rise to a substantial common question of fact or law – Whether all group members fell within the definition of group members in the pleadings – Whether certain pleadings and particulars should be struck out – Whether certain terms and expressions used in the pleadings were ambiguous. Legislation Cited: Civil Procedure Act 2005 Federal Court of Australia Act 1976 (Cth) Uniform Civil Procedure Rules 2005 Cases Cited: Bright v Femcare Ltd [2002] FCAFC 243; 195 ALR 574 Gill v Ethicon Sàrl (No.3) [2019] FCA 587 Karpik v Carnival PLC [2023] HCA 39 Moore v Scenic Tours Pty Ltd (No.2) [2017] NSWSC 733 Nguyen v Rickhuss [2023] NSWCA 249 Petrusevski v Bulldogs Rugby League Club Ltd [2003] FCA 61 Szanto v Bainton [2011] NSWSC 985 Wong v Silkfield Pty Ltd [1999] HCA 48; 199 CLR 255 Texts Cited: Australian Consumer Law Category: Procedural rulings Parties: Darren Kelly (P) Scenic Tours Pty Ltd (D) Representation: Counsel: J Hogan-Doran / Ms Roberts (P) D S Weinberger / D Meyerowitz-Katz (D) Solicitors: Somerville Legal (P) HWL Ebsworth (D) File Number(s): 2022/238642 Publication restriction: Not Applicable JUDGMENT 1. On 17 August 2022, the plaintiff, Darren Kelly, commenced representative proceedings against the defendant Scenic Tours Pty Ltd ("Scenic"), pursuant to Part 10 of the Civil Procedure Act 2005 ("CPA"). 2. The Statement of Claim claims damages for the plaintiff and group members arising out of Scenic's alleged failure to comply with the consumer guarantees under the Australian Consumer Law ("ACL") on 21 identified cruise trips ("the Cruises") along the river and canal waterway systems which connect Amsterdam to Budapest. The Cruises took place between 18 June 2018 and 21 November 2018. 3. These proceedings have distinct similarities to Moore v Scenic Tours Pty Ltd, a matter in which there are many published judgments of this Court, the Court of Appeal and one of the High Court of Australia. I note that the solicitors and counsel for the plaintiff in these proceedings are those who acted and appeared for Mr Moore. The counsel for Scenic are the same as those who appeared for Scenic in the Moore proceedings. Notice of Motion 1. On 1 December 2022, the defendant filed a Notice of Motion seeking various forms of relief. The relevant orders sought were: "1. An order pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005 that the following parts of the pleadings and particulars in the statement of claim filed on 12 August 2022 are struck out: … 2. A declaration that the proceeding is not properly commenced under Part 10 of the Civil Procedure Act 2005 insofar as it concerns persons other than those who: (a) participated in the 'Jewels of Europe' cruise from Budapest to Amsterdam commencing on 30 July 2018 (being 'Mr Kelly's cruise' as defined in the statement of claim); and (b) entered into agreements with the defendant. 3. Pursuant to sections 166(1) and, or alternatively, 183 of the Civil Procedure Act 2005, the proceeding no longer continue as a representative proceeding insofar as it concerns persons other than those who: (a) participated in the 'Jewels of Europe' cruise from Budapest to Amsterdam commencing on 30 July 2018 (being 'Mr Kelly's Cruise' as defined in the statement of claim); and (b) entered into agreements with the defendant." 1. Prior to the hearing of the Motion, the plaintiff, on 10 March 2023, filed and served an Amended Statement of Claim ("ASC"). Appropriately, the parties agreed that the Motion should be determined by reference to the ASC rather than the original Statement of Claim. 2. Counsel for Scenic informed the Court at the commencement of the hearing that Order 3 of the Motion seeking relief pursuant to s 166 of the CPA was no longer being pressed. However, Scenic did press the claims made in Orders 1 and 2 of the Motion. 3. This judgment deals with the defendant's Motion. Relevant Legislation 1. As can be observed from the declaration and orders sought in the Notice of Motion set out at [5] above, various provisions of the CPA are relevant. 2. Section 157 regulates the commencement of proceedings under Part 10 of the CPA. It is in the following form: "157 Commencement of representative proceedings (1) Subject to this Part, where— (a) 7 or more persons have claims against the same person, and (b) the claims of all those persons are in respect of, or arise out of, the same, similar or related circumstances, and (c) the claims of all those persons give rise to a substantial common question of law or fact, proceedings may be commenced by one or more of those persons as representing some or all of them. (2) Representative proceedings may be commenced— (a) whether or not the relief sought— (i) is, or includes, equitable relief, or (ii) consists of, or includes, damages, or (iii) includes claims for damages that would require individual assessment, or (iv) is the same for each person represented, and (b) whether or not the proceedings— (i) are concerned with separate contracts or transactions between the defendant in the proceedings and individual group members, or (ii) involve separate acts or omissions of the defendant done or omitted to be done in relation to individual group members." 1. The CPA provides for a number of mandatory inclusions in a pleading. Section 161 of the CPA is in the following form: "161 Originating process (1) The originating process in representative proceedings, or a document filed in support of the originating process, must, in addition to any other matters required to be included— (a) describe or otherwise identify the group members to whom the proceedings relate, and (b) specify the nature of the claims made on behalf of the group members and the relief claimed, and (c) specify the question of law or facts common to the claims of the group members. (2) In describing or otherwise identifying group members for the purposes of subsection (1), it is not necessary to name, or specify the number of, the group members." 1. Although relief is no longer sought pursuant to Section 166 of the CPA, the provision has continuing relevance as it provides for circumstances in which a Court may order discontinuance of representative proceedings. It is in the following form: "166 Court may order discontinuance of proceedings in certain circumstances (1) The Court may, on application by the defendant or of its own motion, order that proceedings no longer continue under this Part if it is satisfied that it is in the interests of justice to do so because— (a) the costs that would be incurred if the proceedings were to continue as representative proceedings are likely to exceed the costs that would be incurred if each group member conducted a separate proceeding, or (b) all the relief sought can be obtained by means of proceedings other than representative proceedings under this Part, or (c) the representative proceedings will not provide an efficient and effective means of dealing with the claims of group members, or (d) a representative party is not able to adequately represent the interests of the group members, or (e) it is otherwise inappropriate that the claims be pursued by means of representative proceedings. (2) It is not, for the purposes of subsection (1) (e), inappropriate for claims to be pursued by means of representative proceedings merely because the persons identified as group members in relation to the proceedings— (a) do not include all persons on whose behalf those proceedings might have been brought, or (b) are aggregated together for a particular purpose such as a litigation funding arrangement. ..." 1. Section 168 of the CPA is also relevant. It is in the following form: "168 Determination of questions where not all common (1) If it appears to the Court that determination of the question or questions common to all group members will not finally determine the claims of all group members, the Court may give directions in relation to the determination of the remaining questions. (2) In the case of questions common to the claims of some only of the group members, the directions given by the Court may include directions establishing a sub-group consisting of those group members and appointing a person to be the sub-group representative party on behalf of the sub-group members." 1. Section 177 of the CPA provides for the powers of the Court and allows the Court to determine a question of law, determine a question of fact, make a declaration of liability or make an award of damages for an entire group in an aggregate sum, including to sub-group members or to individual members, being damages which consist of specified amounts or amounts worked out in such manner as the Court sees fit. 2. Section 179 of the CPA is of importance, and provides: "179 Effect of judgment A judgment given in representative proceedings— (a) must describe or otherwise identify the group members who will be affected by it, and (b) binds all such persons other than any person who has opted out of the proceedings under section 162." Amended Statement of Claim 1. As earlier noted, the Notice of Motion sought orders relating to the strikeout of certain parts of the plaintiff's original Statement of Claim, but the defendant's Motion was maintained, with slight variations, with respect to the ASC. 2. The group of people on whose behalf the plaintiff commenced the representative proceedings were described in the ASC in the following way: "2. This proceeding is commenced by Mr Kelly on his own behalf and on behalf of persons (Group Members) who: (a) booked a place on or travelled on any of the river cruises operated or otherwise supplied by or acquired from the Defendant (Scenic) as set out in Annexure A to this Statement of Claim (collectively, the Cruises); (b) suffered loss or damage because the Services (as defined below): (i) were not reasonably fit for the Particular Purpose (as defined below); (ii) were not of such nature and quality as might reasonably be expected to achieve the Desired Result (as defined below); and (c) are not: (i) the legal practitioners or funders providing (respectively) services to Mr Kelly and other Group Members in order to assist them to recover the relief claimed in this proceeding; or (ii) judicial officers of the Supreme Court of NSW or the High Court of Australia." 1. It can be seen that, leaving aside the minor exception for some legal practitioners and Judges, there are two qualifying criteria for membership of the group, namely: 1. a person who booked on, or travelled one, one of the Cruises; and 2. who suffered loss or damage by reason of Scenic's failure to comply with consumer guarantees under the ACL. 1. Extensive particulars and definitions of the group members followed which provide further details of the qualifying criteria, but do not change them. They included: "Particulars (a) Supplied (supply) has the same meaning as in s 2 of the Australian Consumer Law (ACL) and includes in relation to the Services – provide, grant or confer; (b) Acquired (acquire) has the same meaning as in s 2 of the ACL and includes in relation to the services – accept, (c) The persons to whom Scenic supplied the Cruise and who acquired the Cruises were those who: (i) booked a Cruise in response to reading a brochure published by Scenic; (ii) booked a Cruise with Scenic whether through a travel agent or by direct communication with Scenic or any other agent of Scenic; (iii) booked a Cruise and paid any deposit to Scenic; or (iv) were a passenger who booked on, or booked and paid a deposit for, a Cruise operated by Scenic whether through Scenic or any other entity. (d) The defendant operated each of the Cruises by: (i) working jointly with other entities associated with the defendant which owned and operated the cruise vessels including Scenic Tours Europe AG to provide the Cruises to passengers; (ii) further as to the Evergreen / Emerald Waterways branded cruises, Evergreen being a brand or division of Scenic, partnering with 'Emerald Waterways', a trading name used by ST Touring Canada Ltd, and Scenic Tours (UK) Ltd to provide the Evergreen / Emerald Cruises to passengers. (e) Any person who did not travel on a Cruise is not a Group Member." 1. The services to which reference is made in paragraph 2(b) of the definition of Group Members were defined in paragraph 5A of the ASC in the following form: "5A The Services were a luxury European cruise holiday described in: (a) brochures published in the Scenic brand (the Scenic Brochures); and (b) brochures published under the Evergreen or Emerald Waterways brand (the Emerald Brochures)." 1. In the particulars regarding the Scenic Brochures, the ASC identifies a brochure described as the "Australian Scenic Brochure", one described as the "UK Scenic Brochure", and one described as the "Canadian Scenic Brochure". Similarly for the Emerald Brochures, one is described as the "Australian Emerald Brochure", one is described as the "UK Emerald Brochure" and one is described as the "Canadian Emerald Brochure". Each Brochure is clearly identified by reference to where they can be located. 2. Paragraph 5B of the ASC extensively sets out which Services were to be provided. The Services are initially summarised in this way: "The Services as identified in the Scenic Brochures and the Emerald Brochures was the provision of a luxury European river cruise experience on the Rhine/Main/Danube river system including on-board and on-shore services." 1. Those on-board and on-shore services are then comprehensively particularised. Relevant Facts 1. Although this Motion dealt with interlocutory orders concerning the alleged ambiguity in parts of the ASC, and an order that the proceedings were not properly commenced, the parties put before the Court over 1,300 pages of evidence. None of this material was objected to on the grounds of relevance. There was no contest about any of the material and, accordingly, it has not been necessary to make any determination of contested fact. 2. The following summary of relevant facts is taken from that uncontested material. 3. In determining Order 2 of the Notice of Motion, which sought a declaration that the proceedings were not properly commenced under Part 10, the evidence adduced is not strictly relevant. That is because the issue is to be determined by reference to the pleading, and whether, having regard to the material facts set out in the pleadings, ss 157(1)(b) and (c) of the CPA are satisfied: Nguyen v Rickhuss [2023] NSWCA 249 at [27]. However, the parties' approach to the Motion did not limit their submissions in that way. The factual evidence was regarded as being relevant to all of the relief sought. It is convenient for the Court to adopt that approach. 4. Prior to the commencement of these proceedings in 2022, proceedings by way of preliminary discovery pursuant to Part 5 of the Uniform Civil Procedure Rules 2005 ("UCPR") had taken place. Some of the evidence which was before the Court on the preliminary discovery application was referred to in these proceedings. No objection was taken to that course. 5. By letter dated 10 October 2022, the then solicitors for Scenic (SWS Lawyers) provided information to the plaintiff as to the number of guests and their country of origin for all of the Cruises. They said: "We are instructed that the approximate categorisation of Australian and International guests is as follows: 1. 1,277 were guests from Australia; 2. 294 were guests from the UK; 3. 817 were guests from Canada; 4. 591 were guests from the USA; and 5. 63 were guests from [the rest of the world]." 1. The parties were content to proceed on the basis that, of the total possible members of the group (being all of the passengers on the Cruises) of 3,042, 1,765 would be categorised as "International passengers" and 1,277 would be categorised as "Australian passengers". 2. In the preliminary discovery proceedings, an affidavit dated 15 May 2019 was sworn by Ms Donna Willis, who described herself as the Guest and Corporate Affairs Manager of Scenic. She gave her address as the corporate address of Scenic, and informed the Court that she was authorised to affirm the affidavit on behalf of Scenic. Ms Willis' affidavit was directed to describing the task involved in responding to the various categories of documents sought by the plaintiff in those proceedings. She said that she had access, as part of her role as the Guest and Corporate Affairs Manager: "… to the internal records of the defendant in relation to 'the Cruises' and the passengers on board, during 'the Period' …". 1. It is relevant to note that the Cruises referred to, and the period of time referred to, coincide with the Cruises pleaded in these representative proceedings. Ms Willis said that she had access to a master list of the defendant's 2018 European River Cruises which was stored and located on "the defendant's internal European drive". From that master list, which is a spreadsheet, Ms Willis could identify each individual relevant cruise "that operated within the period". She was also able through that system to collate a passenger manifest for each individual cruise. That manifest would include all passengers who travelled on the cruise. No differentiation was made between whether the passengers were international or Australian. 2. Within the defendant's intranet system, Ms Willis could identify and open the guest manifest for each cruise identified in the relevant period. That guest manifest lists the names, addresses and other contact details for each passenger on each of the cruises. 3. Ms Willis could also obtain from the computer system a copy of all notes made by a Cruise Director for each cruise. The nature and content of such notes was referred to in [484]-[684] of Moore v Scenic Tours Pty Ltd (No.2) [2017] NSWSC 733 ("Moore (No.2)"). They provide a comprehensive account on a daily basis of events on each cruise, and any issues for any of the passengers. 4. Ms Willis identified the existence of an internal email distribution list by which, and from which, emails are sent to a number of recipients. This list, Ms Willis affirmed: "Is utilised by the defendant to communicate to relevant persons within the organisation the status of incidents affecting tours operated by the defendant." 1. She was also a recipient of any emails sent to that list. 2. During the relevant period of about 214 days during which the Cruises were taking place, Ms Willis said that she received about 1,200 emails which were also distributed to persons on that list. Ms Willis, in the course of her evidence, identified 14 key personnel (in addition to herself) who were likely to have received emails on that list. Those personnel included individuals described as "General Manager, Operations Europe; Operations Manager; Operations Supervisor; Cruise Operations; and Chief Operations Officer". 3. Further, in her affidavit, in dealing with a request for discovery of documents described as "Booking Advices", Ms Willis said, the following: "Upon guests booking a tour with the defendant, the defendant will assign those guests a unique booking number and issue them with a booking advice." 1. Ms Willis said she estimates there were likely to be about 25,000 relevant booking numbers, which is a number allocated to a booking advice and any revision or alteration for that advice. She then said this: "I have estimated this number by multiplying the number of cruises identified during the period by the average number of guests that are booked on one of the defendant's river cruises. This number is then divided by 2 as, in my experience, each booking number will, on average, usually include two guests." 1. Ms Willis made no suggestion that any different system applied to Australian or International guests. She made no suggestion that there was a different system applying to any company or entity falling within the broader Scenic group of companies. 2. In dealing with questions of compensation, Ms Willis in her affidavit said: "37. The defendant maintains a register of issues reported to it by guests in regard to all tours operated by the defendant across the world ('the Register'). Depending on the circumstance of the issue, the defendant may compensate the relevant guests for that issue and record in the Register the compensation paid." 1. When dealing with a further category of discovery which sought the standard form terms and conditions forming part of any contract Scenic entered into with the passengers, Ms Willis said: "47. The defendant operates tours, including the Cruises, under each of the following brands: (a) 'Scenic Tours' (Scenic); (b) 'Evergreen Tours' (Evergreen); and (c) 'Emerald Waterways' (Emerald) (the Brands). 48. The Brands are operated by the defendant, or a related entity, in the following markets: (a) Australia; (b) New Zealand; (c) the USA; (d) Canada; and (e) the UK. (the Markets). 49. Evergreen operates within the Australian market only, whereas Emerald operates in each of the Markets save for Australia. Scenic operates in each of the Markets. 50. In each of the Markets, a set of terms and conditions is issued for each of the Brands that operates in that jurisdiction." 1. The solicitor for the defendant, Ms Susan Moran, in an affidavit of 1 December 2022, provided information to the Court which she had obtained from Ms Fittler, the Executive General Manager of Scenic. That information included that there was an Australian brochure published by each of Scenic and Evergreen. These two brochures were different. Further, Ms Fittler informed Ms Moran that in Canada, each of Scenic and Emerald published separate brochures. They also did so in the United Kingdom. Copies of those brochures were exhibited to the affidavit of Ms Moran. A separate Scenic brochure was published in the United States of America. 2. The Scenic Canada brochure only makes a minor reference to the existence of ST Touring Canada Ltd t/as Scenic. But it does so on the final page of the brochure where, under the heading "Scenic Offices", is the description that the "Head Office" of Scenic is at Newcastle. A different website is given for each Scenic's offices in Australia, Canada, USA and UK. However, no other difference is to be observed relating to the cruises, the ships on the cruises, the services to be provided and what is described on page 14 of the brochure as the "Scenic Experience", namely: "In 2016 we celebrated 30 years in the business. We are experts at what we do and we still love handcrafting extraordinary experiences for our guests, just as much as we did back in 1986. … We realise that every trip is as unique as our guests, which is why we offer an extensive range of all-inclusive excursions, allowing you to tailor your holiday to be the trip of a lifetime. We take pride in what we do. We go to the Nth degree." 1. The UK brochure is also included. It includes this statement: "At Scenic we offer the most inclusive river cruises in Europe, going to the Nth degree to provide exclusive and authentic experiences, combined with award winning excursions, to take you deep into the heart of every destination you visit. … All this, as well as our uncompromising signature all-inclusive service, confirms that Scenic really is the only way to cruise the incredible rivers of Europe." 1. I note that the final page of the UK Brochure has a "get up" similar to that in the Canadian Brochure, but only names the Australian company, Scenic Tours Pty Ltd. It makes no reference to any UK company. 2. Although it has not been possible to read and closely compare each of the Australian brochures, and those for Canada and the UK, the following observations are apt. 3. Each brochure has an identical front page with the exception of the bottom lefthand corner which provides in small font the website for the respective countries. Each brochure has the same title, namely "The Hidden Wonders of Europe River Cruising". The next two pages which describe the nature, the "perks and privileges" and "taking the Scenic route" are, in all respects, identical with the exception that in the UK brochure there is an addition about the flexibility of including return flights or taking up a "no fly" option. There are undoubtedly differences between the brochures, such as where the brochures make reference to currency. In those circumstances, the currency is that of the relevant country. 4. But, what is clear is that the cruises offered are the same and the ships offered are the same. There is no suggestion in any of these brochures that services to passengers will be different depending upon their country of origin. 5. Counsel for Scenic, in oral submissions, accepted that there was no difference of substance between the three Scenic Brochures (Australian, Canadian or UK) which he had identified in respect of the experience or Services which were being promoted in each of the Scenic Brochures. 6. Curiously, in the Australian and Canadian brochures, in the extremely small font containing the "Terms and Conditions", the contracting party is identified as "Scenic Pty Ltd". In the UK brochure, the contracting party is identified as "Scenic Tours (UK) Ltd t/as Scenic". No explanation is apparent from the evidence as to this fact, nor who or what is Scenic Pty Ltd. 7. According to the correspondence exchanged between the parties, which is in evidence on the Motion, the following companies appear to be identified as being potentially relevant for International passengers, in addition to the named defendant. They are: 1. Scenic Tours New Zealand Ltd; 2. Scenic Tours (UK) Ltd; 3. Scenic Tours (USA) Inc; and 4. ST Touring Canada Ltd. 1. Any trading names used by these companies are not separately identified. There is no suggestion that any name other than Scenic is used throughout the brochure. The material contained in the evidence also makes plain the defendant's assertion as to the underlying arrangements for International passengers. It is apparent that it will be contended, as is made clear in a letter from the lawyers for the defendant dated 10 October 2022, that the International passengers entered into contracts with entities other than the defendant for the provision of the river cruise services. Apparently, it will be contended that such passengers were provided with a copy of a passenger ticket terms and condition document which contained terms and conditions that applied to the contract of carriage between the passenger and "… the operator of the relevant cruise vessel". It is asserted by the defendant's solicitor that the defendant was not the owner or operator of any of the vessels for the Cruises and that it was not a party to the contract of carriage for any of them. 2. That letter of 10 October 2022 contains these statements: "We are instructed that there is no contractual relationship between the defendant and any of the 'other entities' identified in your correspondence, nor any of the entities in the contractual terms and conditions outlined above, whereby the defendant would provide recreational river cruise services to the UK, Canadian and US group members. We are instructed that Scenic Tours Europe AG (STE) had separate agreements ('Distribution Contracts') with Scenic Tours (UK) Limited, ST Touring Canada Ltd and Scenic Tours (USA) Inc for those entities to sell river cruises to customers, through local agents, in their respective territories of the UK, Canada and the USA. Scenic Tours Europe AG also had an agreement with the defendant for the defendant to sell river cruises to customers in Australia. … The defendant will demonstrate in the Proceedings that: (a) it did not have a contractual relationship with any of the UK, Canadian and US guests on the Cruises to provide recreational river cruises services; and (b) it did not have an agreement with 'other entities' to provide recreational river cruises services to UK, Canadian and US guests; and (c) it did not in fact provide any services, including any recreational river cruise services, to UK, Canadian and US guests. In view of the above there is no basis upon which the UK, Canadian or US guests would succeed in any claim against the defendant for failure to comply with consumer guarantees in sections 61(1) and (2) of the Australian Consumer Law." 1. I note that nowhere in the evidence on this Motion is to be found any diagram explaining the defendant's organisation, any ownership, or any relationship with respect to the Cruises as between the defendant and other companies bearing the name "Scenic" and which operate in various locations around the world. Nor is there any document or explanation as to the way in which the computerised system to which Ms Willis had extensive access relates to the defendant, and entirely separately to any (and if so, which) other companies, the defendant relies upon as being involved in the booking of river cruises for, and the operation of river cruises for, International guests. This omission is particularly notable having regard to the content of the evidence of Mrs Willis, and the promotional brochures described above. There is no evidence at all of any senior officer of the defendant which describes in adequate detail any of these matters. No attempt has been made for the purpose of this Motion to prove the assertion in the letter of 10 October 2022. Submissions of Scenic 1. Scenic submitted that pursuant to r 14.28(1) of the UCPR, the ASC was defective because it was embarrassing within the meaning of that rule as it was ambiguous or "so imprecise" as to deprive Scenic of "… proper notice of the real substance of the claim or defence": Szanto v Bainton [2011] NSWSC 985 at [107]. 2. Scenic noted that the requirements set out in s 161(1) of the CPA with respect to any statement of claim were not fulfilled because of the imprecision and ambiguity of the ASC. It noted that one of the relevant functions of s 161 of the CPA was to enable the Court to determine, upon the commencement of the proceedings, "…whether or not it has been properly constituted as a class action": Gill v Ethicon Sàrl (No.3) [2019] FCA 587 at [7]. 3. In substance, what Scenic submitted was that the ASC failed to comply with ss 157 and 161 of the CPA with the consequence that the plaintiff did not have standing to commence the proceedings except in respect of those group members who participated in the cruise upon which the plaintiff was a passenger. Even then, Scenic submitted that there was no room for any inclusion of International passengers who were on that Cruise. 4. Scenic first addressed the definition of group member in the proceedings, which it submitted was wholly inadequate. In so submitting, it concentrated on a number of the particulars to the definition of the group members. It is convenient to repeat one particular of the ASC – paragraph 2(c)(iv) – which was in the following terms: "The persons to whom Scenic supplied the Cruises and who acquired the Cruises were those who: … (iv) were a passenger who booked on or booked and paid a deposit for, a Cruise operated by Scenic whether through Scenic or any other entity." 1. Scenic noted that the particular needed to be read with the following particular, namely paragraph 2(d) which is set out again here: "(d) The defendant operated each of the Cruises by: (i) working jointly with other entities associated with the defendant which owned and operated the cruise vessels including Scenic Tours Europe AG to provide the Cruises to passengers; (ii) further as to the Evergreen / Emerald Waterways branded cruises, Evergreen being a brand or division of Scenic, partnering with 'Emerald Waterways', a trading name used by ST Touring Canada Ltd and Scenic Tours (UK) Ltd, to provide the Evergreen / Emerald Cruises to passengers." 1. Scenic submitted that the use of the phrase "operated by Scenic" in paragraph 2(c)(iv), which is repeated in the introduction to paragraph 2(d), was ambiguous because it could mean a range of factual conduct such as, at one end of the spectrum – simply the provision of a boat upon which services were provided by others; ranging through to the complete provision of the boat and all services upon it. 2. Scenic submitted that that ambiguity was compounded by the generality of the particulars in paragraph 2(d) which included these phrases: "… working jointly …"; "… other entities associated with [Scenic] …"; and "… partnering with [identified trading name and corporations]" 1. Scenic submitted that these phrases were such that a potential group member would not be able to decide whether or not they fell within the group. Further, by reason of their ambiguity and vagueness, it would not be possible for Scenic to understand whether the content of the consumer guarantees relied upon were applicable to it, or to the other entities or to all providers of any service on any of the cruises. It followed, Scenic submitted, that it was not possible to determine that there were any common issues of fact or law for all of the Cruises except for the cruise upon which the plaintiff himself was a passenger. 2. In particular, Scenic noted that the group definition was not limited to passengers who booked with Scenic in Australia or through a travel agent who dealt with Scenic in Australia, but rather, as was apparent, included International passengers who booked in the United Kingdom, Canada and possibly other places. These International passengers, Scenic submitted, could not determine whether the content of the consumer guarantees were applicable to them without first knowing or understanding what the facts and circumstances were surrounding the operation of the Cruises by Scenic, including which "entity" actually operated the Cruise. 3. Scenic emphasised the particular importance of clarity in the pleading when over half of the passengers on the Cruises were International passengers. That is to say, their bookings were made with companies outside Australia, with the consequence that, on Scenic's submission, the ACL and its contents had no application to a contract entered into from outside Australia for people who lived outside Australia and who did not contract with the named defendant, Scenic Tours Pty Ltd. 4. Scenic submitted that there could not be a common question of either fact or law within the meaning of the CPA as between International guests and those who booked domestically. It also submitted that a question would arise as to whether, assuming proper representatives of International guests and Australian passengers were identified, and all of the relevant Scenic-related corporations were joined, it was not obvious from the pleadings that the ACL would apply to International guests, and, if it did, how that could be so. 5. Scenic further submitted that the definition of "Services" in the ASC demonstrated that there was no possibility of any common question of fact or law arising of a kind which would justify the commencement of representative proceedings. 6. Scenic submitted that in paragraph 2(b) of the ASC, an essential feature of the definition of the class is that a group member is a person who suffered loss or damage because the "Services" were in breach of the consumer guarantees in the ACL. Scenic noted that the Services were defined in paragraph 5A in the ASC as being a luxury European cruise holiday described in the various Scenic or Emerald Brochures, which were particularised (see [19] and [20] above). 7. In light of these pleadings, Scenic submitted that the plaintiff in substance and effect pleads a single rolled-up definition of "Services" encompassed by six brochures, published in three countries, by three separate legal entities. Scenic submitted that the only brochure which could be relevant to the plaintiff's case, and therefore which could give rise to a substantial common question of fact or law, emerges from the Australian Brochure alone. Accordingly, Scenic submitted, there is no common question that could "conceivably arise" except in respect of the plaintiff's cruise, and only then in respect of passengers who relied upon the Australian Brochure. 8. In discussion, counsel for Scenic accepted that these latter submissions could be encapsulated by saying that it was Scenic's position, in the context of the ASC, that no two cruises could give rise to a substantial question of fact or law. 9. Counsel for Scenic dealt with the group member definition by submitting that as a matter of principle, any such definition needed to add "uninformed person" to be sufficient to allow a person to determine whether they were a group member or not. Scenic submitted that having regard to the use of the phrase "… operating a cruise …" (regarding the defendant), a person could not determine from such a vague, ambiguous and unintelligible description whether they were a group member or not. 10. For those additional reasons, counsel for Scenic submitted that the definition of group members did not satisfy the provisions of ss 157 and 161 of the CPA. Submissions of the Plaintiff 1. Counsel for the plaintiff submitted that there is no room for ambiguity or misunderstanding with respect to potential group members. Counsel submitted that from the pleading, it is obvious that the plaintiff's case is that Scenic was the operator of all of the Cruises which are described in Annexure A to the ASC. He noted that it was not the plaintiff's case that Scenic only operated some, but not all, of the Cruises. He further submitted, by reference to the particular in paragraph 2(e), which excludes from group membership only those who did not in fact travel on one of the Cruises, that it was obvious that any potential group member would need only to make a determination that they were part of the group by satisfying themselves that they were a passenger who did actually travel on one of the Cruises. 2. Counsel for the plaintiff also drew attention, in submitting that there was no ambiguity or lack of precision in the pleading, to the fact that the structure of the Australian Brochures, the Canadian Brochures and the UK Brochures did not, with the exception of dates of specific itineraries, differentiate in the description of the Services which were to be provided to passengers on the Cruises and the experiences which they were to enjoy. Counsel drew attention to the fact that those descriptions applied to all of the Cruises contained in the Brochure and that there was nothing to suggest that any individual cruise was different from another in that respect. 3. This submission included that the clear implication was that Scenic also made no differentiation between International passengers and Australian passengers insofar as the evidence in the preliminary discovery proceedings which described and promoted the experience and services, and insofar as the services were actually provided. It is the plaintiff's case that the description of the experience and services promoted in the various Brochures were identical regardless of the terms of any contract entered into, and it is the plaintiff's case that the services provided on each Cruise were provided identically to each passenger on that Cruise. 4. Insofar as the defendant submitted that the phrase "operated the Cruise" was capable of ambiguity and was unintelligible, the plaintiff submitted that such a submission should not be upheld having regard to the terms of the evidence given in the preliminary discovery proceedings to which I have earlier adverted, and the content of correspondence to various group members who were complaining of their experience on one or more of the Cruises, which included extensive reference to the defendant's "operations team" involved in the management of the Cruises. 5. This reference, it was submitted, mirrors what Ms Willis says in her affidavit about the existence of the "email group" involving various individuals – all of whom were concerned with the operation of all of the Cruises. 6. Finally, counsel for the plaintiff pointed to the Court's findings at [16]-[23] in Moore (No.2) about the internal roles within Scenic and other entities within the broader Scenic Group operating "jointly" and being "closely associated" in the provision of services to passengers. 7. The plaintiff noted that, in the absence of a defence, the Court should not proceed upon the basis that there is any material difference of fact between the way Scenic operated its cruises, which were the subject of the proceedings in Moore (No.2), and which are the subject of these proceedings. 8. The plaintiff submitted in response to the defendant's submission, that there was no cause of action set out in the Statement of Claim relevant to the Group definition, by pointing to the extensive particularisation in paragraphs 5A and 5B of the ASC. It submitted that in determining whether or not one was a group member, the appropriate test of principle was that enunciated by Sackville J in Petrusevski v Bulldogs Rugby League Club Ltd [2003] FCA 61 at [23], where his Honour said: "23. A useful, although not necessarily exhaustive test, is whether the description is such as to enable a person, with the assistance of a legal adviser if necessary, to ascertain whether he or she is a group member. If the description incorporates a reference to conduct alleged in the pleadings, a person or his or her adviser ought to be able, by reading the description and the relevant portion of the pleadings, to determine whether he or she is a member of the represented group." 1. The plaintiff submitted that the mere fact that the particularisation of the definition of the group included alternatives did not mean that the definition was unintelligible or ambiguous. 2. The plaintiff referred to Sackville J's remark at [30] of Petrusevski: "30. … some latitude may be allowed to an applicant in pleading a representative action to take account of the special characteristics of such actions. I do not think it is necessary for the definition of a represented group to be so precise as to eliminate all possible ambiguity or room for argument." 1. In oral submissions, counsel for the plaintiff took the opportunity to emphasise that the pleading that Scenic operated the Cruises reflected Scenic's own description of what it did on the evidence led in the preliminary discovery proceedings, and that there is no suggestion that the services which were provided, and the experience which each passenger had on each cruise, were in any way differentiated between those who booked (or perhaps contracted) in a country other than Australia. In other words, the plaintiff emphasised the fact that International passengers and Australian passengers received the same services on each cruise, had been the subject of substantially the same promotional material about what they would receive, and that, depending on the cruise, they had each suffered disruptions and consequent disappointment with respect to their experience. 2. It was submitted that a potential group member would have no difficulty in comparing the promise which was made to them in the brochures with the reality of what was provided on the cruises. 3. The plaintiff submitted that the so-called ambiguity, vagueness and unintelligibility of the pleading was more in the imagination of the defendant than in the reality of what the pleading contained. Discernment 1. It is convenient to first deal with the question of whether or not the proceedings have been properly commenced under Part 10 of the CPA. 2. It is to be noted that there are three requirements of a threshold kind which are to be satisfied before proceedings are commenced properly in accordance with s 157 of the CPA. 3. The first of these is that seven or more persons have claims against the same person. No submission was made that this provision had not been satisfied. The evidence to which I have referred, which notes that there were many more than seven passengers on the cruise which the plaintiff took, is sufficient of itself and without any further consideration for the Court to be satisfied about this provision. 4. The second matter is that the claims of all of those persons "… are in respect of, or arise out of, the same, similar or related circumstances …" and the third is that the claims of all of the group members "… give rise to a substantial common question of law or fact". It is convenient to consider the second and third threshold questions together. In considering these two threshold questions, it is appropriate to proceed in accordance with the approach of the Court of Appeal in Nguyen v Rickhuss [2023] NSWCA 249. 5. At [22], the Court (Ward P, Leeming JA and Basten AJA) said: "22. The requirements in s 157(1) are cumulative. … It will be seen that s 157(2) makes it clear that the absence of commonality in the relief sought, or in the transaction or contract which gives rise to the dispute, or in the nature of the breach, does not stand in the way of the conclusion that s 157(1)(c) is satisfied. In short, the force of s 157(2) is to confirm the generality of the approach in s 157(1)." 1. Further, the Court considered the interpretation of s 157(1)(c). At [27], it said: "27. There is no basis in the text or context to construe 'common question of law or fact' in s 157(1)(c) narrowly. There is certainly no reason to introduce a supposed dichotomy between questions which are 'common' and questions which are 'individualistic' and then to read down s 157(1)(c) so that if the question is regarded as 'individualistic' it cannot be 'common'. To the contrary, whether or not s 157(1)(c) is satisfied turns merely on whether the questions arising on the pleading comprise one or more common questions of law or fact and, if so, whether they are 'substantial'." 1. Further, the Court noted the question could be 'common' even if a defendant chose to adduce different evidence in respect of each aspect of the claim. 2. As well, the Court noted that in Bright v Femcare Ltd [2002] FCAFC 243; 195 ALR 574, Kiefel J said at [126] (in reference to s 33C(1) of the Federal Court of Australia Act 1976 (Cth), the counterpart of s 157(1)(c)): "The focus of s 33C(1), particularly pars (b) and (c), are upon the applicant's claims. It follows, in my view, that a determination as to whether the requirements of s 33C(1) have been met is to be made by reference to the pleading or other document in which the claims of the applicant and the group members are made. … Whether those issues will remain at the close of pleadings, and whether the evidence which will be led in each case might differ in some respects, are not matters which are relevant to a determination as to whether there is a common question and whether s 33C(1) is satisfied." 1. The requirement of these threshold conditions was also considered by the High Court of Australia, again addressing the provisions of s 33C in Wong v Silkfield Pty Ltd [1999] HCA 48; 199 CLR 255 where the Court (Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ) said this: "27. The term 'substantial' may have various shades of meaning. Having regard to the context, it may mean 'large or weighty' or 'real or of substance as distinct from ephemeral or nominal'. … 28. Clearly, the purpose of the enactment of Part IVA was not to narrow access to the new form of representative proceedings beyond that which applied under regimes considered in [past] cases. … This suggests that, when used to identify the threshold requirements of s 33C(1), 'substantial' does not indicate that which is 'large' or 'of special significance' or would 'have a major impact on the … litigation' but, rather, is directed to issues which are 'real or of substance'. 29. The circumstance that proceedings which pass the threshold requirement of s 33C may later be terminated as representative proceedings, by order made under s 33N confirms rather than denies such construction of s 33C(1). Further, … the broadening provisions in subs (2) of s 33C emphasise the width of the entitlement conferred by s 33C(1) to commence a representative proceeding." 1. The High Court noted at [30] that it was not necessary to show that litigation of the identified common issue would be likely to resolve wholly, or to any significant degree, the claims of all of the group members. 2. The ASC pleads that the defendant supplied services defined as being a "… luxury European river cruise experience on the Rhine/Main/Danube river system including on-board and on-shore services …" to the plaintiff and to the group members. 3. It further pleads that the services breached the consumer guarantees in the ACL because they were not reasonably fit for the particular purpose and were not of such a nature and quality as might reasonably be expected to achieve the desired result. 4. I accept the submission of the plaintiff that the question of membership of the represented group is a relatively straightforward task to determine because there are only two relevant qualifying criteria – first, whether a person booked or travelled on one of the Cruises, and, secondly, whether they suffered loss and damage by reason of a breach of the consumer guarantee. 5. The lengthy particulars appended to paragraph 2, and the description of the services in paragraph 5A, do not derogate from those qualifying criteria, and do not tell against a conclusion that the claims are in respect of "the same, similar or related" circumstances. 6. To me it is clear that the ASC, amongst other things, identifies how it was that the defendant operated each of the Cruises, the services provided, by whom they were the provided and the nature and quality of those services. The conclusion which may be drawn as to whether they complied with the ACL or not would fall within the description of "substantial common law or fact". 7. Towards the end of the ASC, common questions of fact or law are identified in Questions 1A to 1C (inclusive) as consisting of these matters: namely whether the defendant operated the cruises, whether it supplied services to the group members by operating those cruises or else whether it supplied services more generally. 8. As well, Questions 1, 2, 3 and 4 address the requirements for the consumer guarantees of the ACL to arise and be applicable. Any one of those questions, and together all of them, are in my view a substantial common question of law or fact within the interpretation of that phrase in s 157(1)(c) as called for by the authorities, to which I have made reference. For example, a determination as to whether the ACL is applicable to International passengers will affect more than half of the group. It is a substantial common question of law. 9. Returning to the preceding question arising by reference to s 157(1)(b) is whether the claims of all of the group members arise out of "… the same, similar or related circumstances …". 10. I do not accept the defendant's submission that only the cruise upon which Mr Kelly, the named plaintiff, was a passenger, can be regarded as containing the same, similar or related circumstances. In my view, that does not appropriately allow for the reality of what occurred. 11. From the submissions, it seems that the defendant and a company in each of Canada, the UK and USA bearing the name "Scenic" (or in the case of Canada "ST Touring"), each trading as "Scenic" in their respective locations and each using brochures which are in substance the same, offer cruises on the same ships, travelling on the same river system as are offered to Australian passengers. The passengers on each ship come from a variety of places, as the numbers referred to above demonstrate. But they all travel on the same ship. On that ship, they all receive the same services. No distinction is drawn about the provision of services on board the ship, and the conduct of the cruise itself, between the place of origin or residence, or the name of the Scenic company with which a booking was made, at all. Those matters are simply irrelevant to the "Scenic experience" which the brochures offer to provide. 12. A comparison between the Scenic experience offered by the brochures to passengers on each of the Scenic cruises on the European river system leads me, inevitably, to the conclusion that in the time period nominated, given that it is alleged that the cruises were disrupted by the same or a similar weather pattern in Europe creating drought-like, and low water conditions, that the claims arise out of similar or related circumstances as between each cruise, and on any one cruise the claims of the group members on those cruises arise out of the same circumstances. 13. The principal argument is that the International passengers could not fall within the pleading in whatever way it may be interpreted because they contracted with a different company and that the defendant did not provide services for the purposes of those contracts. 14. It is convenient to note that in Karpik v Carnival PLC [2023] HCA 39, the High Court (Gageler CJ, Gordon, Edelman, Gleeson and Jagot JJ) said at [38] this: "38. This appeal is focused on s 5(1)(c) and (g) of the [Competition and Consumer Act 2010 (Cth)]. Relevantly, those provisions provide that the ACL (other than Pt 5-3) extends to the engaging in conduct outside Australia by bodies corporate incorporated or carrying on business within Australia. … That is, if a corporation is carrying on business in Australia, the ACL (other than Pt 5-3) applies to its conduct engaged in outside Australia regardless of whether that corporation is a domestic or foreign corporation. If a corporation carries on business in Australia, then a price of doing so is that the corporation is subject to and complies with statutes intended to provide protection for consumers. That is unsurprising. The same norms of conduct in the ACL are to apply to the engaging in conduct outside Australia by Australian citizens, persons ordinarily resident in Australia and corporations incorporated in Australia. The object of the legislature is readily apparent – the extension of the general and specific protections in the ACL to conduct outside Australia by those persons specified in s 5(1) … 39. That construction is consistent with the specific object and policy of the provision in issue in this appeal… 40. There is nothing irrational in that norm extending to foreign corporations that choose to carry on business in Australia so that they cannot seek to enforce unfair terms within a standard form consumer or small business contract, irrespective of whether that occurs inside or outside Australia. 41. That construction is also consistent with the [Competition and Consumer Act 2010 (Cth)] being beneficial consumer protection legislation." 1. In Karpik the High Court went on to hold that the provisions of the ACL were applicable to a travel contract that was entered into by a Canadian who was a passenger on a ship which departed Sydney for an identified cruise. It was said that the contract between the Canadian passenger and Carnivale PLC which included a "class action waiver clause", was not subject to the ACL. It was subject to the exclusive jurisdiction in favour of the United States District Courts for the central district of California and Los Angeles. 2. I should also note that the principal defendant was a company incorporated in the United Kingdom, and at the time the charterer and operator of the ship in question was a company registered in Bermuda, headquartered in Florida, and which had its principal place of business in California. 3. As a matter of principle, there is no barrier to the pleaded cause of action in these proceedings applying to the International passengers. Whether it did apply to International passengers on the facts proven is a different question. Undoubtedly the question of whether the ACL applied to International passengers or not is a question which is of substance and which is a common question of law applicable to the group members, or at least more than 50% of them. 4. I am unpersuaded that the proceedings were not appropriately commenced in accordance with s 157(1) of the CPA. 5. It is necessary to consider the strike out application for some parts of the ASC, assuming it is otherwise properly before the Court. 6. The real criticism of the pleading by the defendant is that certain terms and expressions which have been used are ambiguous. What does it mean, the defendant submits, when the pleading says it "operated a cruise"? The short answer to that proposition is that that is the term used by the defendant itself in the preliminary discovery proceedings. It is a simple expression which is to be read as encompassing the provision of the services which the defendant advertised in the Australian brochure. It is the provision of the Scenic experience – a luxury, once in a lifetime, 5-star cruise along the European river system. 7. The defendant then says that the use of the terms "associated entity", "working jointly", "Scenic or any other entity" are of such ambiguity that it cannot understand the pleading against it. 8. The short answer to that argument is that, as is apparent from the material put before the Court, it is to be the defendant's case that it did not operate any cruise for any International passenger, it did not enter into any contract with any International passenger, and that through different companies bearing the name "Scenic" and which apparently are part of the Scenic group, because of the similarity of branding, email addresses and the apparent existence of a readily accessible single computer system covering all passengers (whether International or Australian) wherever they were based and with whomever they contracted, means that the defendant is the best-placed party in the proceedings to know what it did. In no sense is the nature of the pleading ambiguous in such a way as would cause any prejudice whatsoever to the defendant, thereby constituting embarrassing proceedings. 9. The inclusion of alternative constructions of fact, for example whether a cruise was operated by Scenic or "another associated entity", or "a related entity", do not speak of ambiguity. What the alternative constructions do is to provide different paths by which the plaintiff seeks to sheet home liability to Scenic. They do not, on the facts of this matter, create uncertainty or ambiguity of a kind which constitutes any "embarrassment" necessary to activate the provisions of r 14.28. 10. I am not satisfied that there is any basis for a complaint about the pleading. 11. It is my conclusion that what the pleader has attempted to do is to cover off, in advance of the receipt of any Defence, the possibilities that have been raised in the correspondence prior to the filing of the Amended Statement of Claim. 12. There is simply no ambiguity of a kind that would give rise to the existence of an embarrassing proceeding. 13. Accordingly, I conclude that the orders sought in the Notice of Motion should be refused, and the Motion dismissed. Costs should follow the event. 14. The defendant should be ordered to pay the plaintiff's costs of the defendant's Motion of 1 December 2022. 15. However, the filing of the Motion did have the result of the plaintiff filing the ASC. The usual order for the costs of and occasioned by the filing of that amended pleading should be made. 16. Insofar as the determination of this Motion includes addressing any outstanding issue of costs of the Motion filed on 28 February 2023, which related to the production of documents pursuant to Notices to Produce issued by the plaintiff, the substance of that Motion was resolved between the parties by consent. That Motion did not require a hearing. The outcome cannot be described as a complete capitulation by one party or the other. 17. In my view, it is appropriate that each party should pay his and its own costs of that Motion of 28 February 2023. Orders 1. I make the following orders: 1. Notice of Motion of the defendant filed on 1 December 2022 is dismissed. 2. The plaintiff is to pay the costs of and occasioned by the filing of the Amended Statement of Claim. 3. With the exception of Order 2, the defendant is pay the plaintiff's costs of the Motion of 1 December 2022. 4. Each party is to pay his and its own costs of the Notice of Motion filed 28 February 2023. 5. Fix the proceedings for further directions at 2pm on Thursday 14 March 2024. 6. Liberty to apply. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 February 2024