Scenic Tours Pty Ltd v Moore [2018] NSWCA 238

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Scenic Tours Pty Ltd v Moore [2018] NSWCA 238 Hearing dates: 14, 15, 16, 17 May 2018 Decision date: 24 October 2018 Before: Payne JA at [1]; Sackville AJA at [2]; Barrett AJA at [410] Decision: 1. Grant the appellant (Scenic) leave to appeal. 2. Direct Scenic to file a notice of appeal in the form of the draft amended notice of appeal within seven days. 3. Allow the appeal in part. 4. Set aside Order 1 made by the primary Judge on 15 November 2017. 5. The respondent's (Mr Moore) claim for damages for disappointment and distress pursuant to s 267(4) of the ACL be dismissed. 6. Direct that on the further hearing of the matter before the primary Judge, his Honour determine Mr Moore's claim for compensation for reduction in value of the services pursuant to s 267(3)(b) of the ACL in conformity with these reasons for judgment. 7. Set aside Order 2 made by the primary Judge on 15 November 2017. 8. The Group Members' claims for damages for disappointment and distress pursuant to s 267(4) of the ACL be dismissed. 9. Direct the parties to file within fourteen days agreed Common Questions and Answers thereto that give effect to these reasons for judgment, insofar as they address the claims of Group Members to compensation and damages by reason of Scenic's breaches and alleged breaches of the Consumer Guarantees. 10. In the absence of agreement, direct that (a) Scenic file within 14 days its proposed Common Questions and Answers thereto, together with written submissions in support not exceeding five pages in length; and (b) Mr Moore file within a further 14 days his proposed Common Questions and Answers thereto, together with written submissions in support not exceeding five pages in length. 11. Set aside Order 2 made by the primary Judge on 31 August 2017. 12. Order that the costs of the proceedings in the Common Law Division be determined by the primary Judge. 13. Order that Mr Moore pay 50 per cent of Scenic's costs of the application for leave to appeal and of the appeal. 14. If Scenic seeks costs orders other than Orders 11, 12 and 13, it should file and serve written submissions as to costs within 14 days, such submissions not to exceed five pages in length. 15. If Mr Moore seeks costs orders other than Orders 11, 12 and 13 or if he wishes to reply to any submissions on costs made by Scenic, he should file and serve written submissions within 28 days, such written submissions not to exceed five pages in length. 16. If Scenic does not file written submissions seeking a variation to Orders 11, 12 and 13, it should file and serve written submissions in reply to any submissions by Mr Moore within a further 14 days. Catchwords: REPRESENTATIVE PROCEEDINGS – representative proceedings brought by Plaintiff on behalf of passengers (Group Members) who paid for and travelled on European river cruises supplied by the defendant – a number of the cruises were seriously disrupted by high water levels on the rivers – Plaintiff seeks compensation for loss of value and damages for disappointment and distress for himself and Group Members – whether proceedings satisfactorily identified common questions of law or fact