Re John Raymond Steiner and Lynne Janine Steiner v Magic Carpet Tours Pty Limited; Easts Holidays Pty Limited and Valerie Jean Ireland [1985] FCA 219 (21 June 1985)

FEDERAL COURT OF AUSTRALIA

Re: JOHN RAYMOND STEINER and LYNNE JANINE STEINER
And: MAGIC CARPET TOURS PTY. LIMITED; EASTS HOLIDAYS PTY. LIMITED and VALERIE
JEAN IRELAND
No. G 371 of 1984
Trade Practices
(1985) ATPR para 40 - 581

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Morling J.
Neaves J.
Burchett J.

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)

HEARING

SYDNEY
21:6:1985

ORDER

1. Appeal dismissed.

2. The appellants to pay the respondents' costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

MORLING J: The appellants appeal against a decision of a judge of the 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 representations 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.

2. The learned trial judge dismissed the application. He held 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 is 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 it was the practice of Magic Carpet Tours to handle transport and accommodation bookings simultaneously so as to ensure that neither was completed until the other was found to be available. She produced a file card which accorded 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.

3. 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 it 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 which we agree, that if the documents are genuine, they establish without any doubt that a booking was transmitted to and confirmed by Mandala Bungalows.

4. 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 it was not renewed before us.

5. 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 conclusion is 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.

6. Counsel for the appellants submitted both to his Honour and to us that even if Magic Carpet Tours had requested Mr Dalem to make the relevant reservations, they were entitled to succeed in the action if Mr Dalem had failed to make an appropriate notation in the reservation book of the Mandala Bungalows because he was acting as an agent 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 is 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.

7. 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 s.52 of the Trade Practices Act was established we do not need to deal with that matter.

8. In the result, the Court is of the opinion that the appeal should be dismissed with costs and we so order.