Chiu Chung Yuet-king and Others v. Good Earth Travel Service

HCSA000008/1979

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Coram: Huggins, J.A., Yang and O'Connor, JJ.

Date of Judgment: 14 February 1980

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JUDGMENT

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Huggins, J.A.:

1. This is another appeal from a decision of a Small Claims Tribunal in which difficulty has arisen largely because of the informal nature of the proceedings below.

2. The Appellants were a family who contracted with the Respondent, a travel service, for a holiday in Australia and New Zealand. Unfortunately the learned adjudicator did not, when the case came before him, settle issues to be decided, as has been suggested by this court. That may have caused him difficulty and undoubtedly it caused difficulty for the parties. The claim was originally drafted so as to suggest a contract to refund money paid for the tour holiday. That is not how the claim was presented at the hearing and the adjudicator expressly found that there was no promise to make a refund. Even if he had found otherwise it may well have been there would be difficulty in establishing that there was consideration for the promise, but the nature of that original claim may have had some bearing on the witnesses who were present and available to give evidence when the matter came on for trial. What in fact was contended at the hearing was that the defendant travel service was in breach of its contract and that there was a repudiation by the Defendant which was accepted by the Appellants.

3. The real dispute is as to the terms of the contract. They were largely contained in a document which was presented to the Claimants when they first went to ask about a holiday. This document was of course not in itself a contract: it was an invitation to treat, and normally a brochure of this kind is made the basis of a contract consisting of an offer by the would-be traveller to travel on the terms of the brochure and an acceptance of that offer by the travel service. The Claimants' contention is that there was a term in the contract that they should be provided with two rooms at the various hotels where they were to stay. The family consisted of the father and mother and three children aged, I think, eleven, ten and eight. When they arrived in Melbourne on the first leg of their holiday they were told that they would have to share: they would have one room for the father and mother and for the youngest child and the other two children were to share with another lady. The adjudicator found that there was not, as had been alleged by the Claimants, an express oral promise to provide two rooms. He went on to say:

"in any case, [the promise] would have to have been very clear if it is to override the terms of the brochure and what, which I accept, are the general travel arrangements in tours of this nature."

We cannot go behind this finding of the tribunal that there was no oral promise. We therefore have to look at the terms of the brochure, though the brochure in my view is, on careful study, perfectly clear. Although the fares were "based on two persons sharing one room", nevertheless there was express provision that children sharing a room with parents were to get a reduced rate. That, in my view, clearly indicated that unless there were some special provision made, only children sharing with parents would get the reduced rate and, on the basis of the money which in fact was paid here, all the Claimants could reasonably have expected was one room for all five of them. So that is the position as I see it on the document as it stands.

4. However, one of the grounds of appeal - and the one which has caused me anxiety - is that the learned adjudicator decided the issue whether there was or was not an express oral promise on totally inadequate evidence. It appears that the oral promise was alleged by the Claimants to have been made to the mother, who, for the reason which I have already indicated, was not present at the hearing. If the case had turned upon the making of a refund, that having been dealt with by the father the mother would not have been a necessary witness, but the husband was not present at the time that this oral promise is alleged to have been made and it seems to me that at the very least the learned adjudicator ought to have warned the father, who was representing all the Claimants at the hearing, that unless he called the mother there was little chance of their being able to establish the existence of this oral promise. I refrain, in this case, from saying that it is the duty of an adjudicator in the Small Claims Tribunal to call a necessary witness himself, but I am satisfied, at least, that it is his duty to indicate quite clearly on the record that he has warned the parties of what any competent advocate would have warned his client. In this case the hearsay evidence given by the husband was unlikely to be successful in establishing the oral promise which was alleged by the Claimants.

5. That, in my view, is enough to decide this case. I will, however, comment on one other ground of appeal, namely No. 4, which relates to an alleged wrongful admission of evidence. The Ordinance says that the ordinary rules of evidence are not to be applicable. The only limitation on that must be, of course, that only evidence which is relevant shall be admitted. The evidence of the British Airways brochure which was submitted in my view had no bearing whatever on this case and should not have been admitted. However, it was entirely neutral and did not assist one way or the other. Certainly it did not prejudice either party. There were also three telexes. Those, in my view, were properly before the tribunal, but I think it was very important that the adjudicator should indicate the use to which he put them. They were not material in relation to the construction of the brochure. They were have been remotely relevant to the credibility of the Claimants' evidence. I say "remotely" relevant because quite obviously they were of very little weight indeed. On the other hand they might be very prejudicial to the Claimants.

6. The first ground of appeal, in view of the conclusion I have reached, it is not necessary to deal with. I think that this case will have to go back for a retrial by another adjudicator and, subject to any argument that may be addressed to us, I think that the costs of this appeal should be the Appellants' costs in the cause.

Yang, J.:

7. I concur.

O'Connor, J.:

8. I also concur.

14th February 1980.

Representation:

A. Neoh (Gallant Y.T. Ho & Co.) for Appellants.

P. Chan (Deacons) for Respondent.