IN THE SUPREME COURT OF VICTORIA	Not Restricted	
AT MELBOURNE
Common Law Division
Judicial Review and Appeals List
S CI 2020 04143

EDWINA DINKHA	Appellant	
		
v  		
		
SARRA DAWOOD	First Respondent	
		
- and - 		
		
JACKLIN SHAMOON	Second Respondent	

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JUDGE:	McDonald J	
WHERE HELD:	Melbourne	
DATE OF HEARING:	24 August 2021	
DATE OF JUDGMENT:	15 September 2021 	
CASE MAY BE CITED AS:	Dinkha v Dawood 	
MEDIUM NEUTRAL CITATION:	[2021] VSC 571	

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APPEAL — Appeal from orders of the Magistrates’ Court of Victoria — Orders made requiring the appellant to pay damages for breach of s 18 Australian Consumer Law and for breach of contract — No evidence to support finding that appellant made any representation to the first respondent — No evidence of intention to create legal relations or consideration to support the existence of a contract between the appellant and the respondents — Appeal upheld — Magistrates’ Court Act 1989 s 109 — Competition and Consumer Act 2010 (Cth) sch 2, s 18. 

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APPEARANCES:
	Counsel	Solicitors	
For the Appellant 	Mr P Lithgow	MMH Lawyers	
			
For the Respondents	Mr S Thomas 	Vasilaras & Co Lawyers	

HIS HONOUR:
Introduction
1	The appellant, Edwina Dinkha (‘Ms Dinkha’), lodged a notice of appeal on 2 November 2020 pursuant to s 109 of the Magistrates’ Court Act 1989 in relation to a decision and orders of Guthrie M. delivered on 2 October 2020.  Ms Dinkha was the third of five defendants in Magistrates’ Court proceeding J10809223.  The Magistrate ordered the third to fifth defendants to pay the plaintiffs the sum of $13,387.30 for breach of s 18 of the Australian Consumer Law (‘ACL’) or, in the alternative, breach of contract.  Neither the fourth or fifth defendants have appealed the order. 
2	Ms Dinkha advances two principal grounds of appeal in the present proceeding.  First, that the Magistrate erred in finding that Ms Dinkha made representations that were misleading or deceptive, or were likely to mislead and deceive, in contravention of s 18 ACL.  Second, that the Magistrate erred in finding that there was a cause of action against Ms Dinkha for breach of contract.
3	For the reasons which follow, the grounds of appeal are upheld.  The decision and order of the Magistrates’ Court of Victoria in proceeding J10809223 in respect of Ms Dinkha will be set aside.  There was no evidence before the Magistrates’ Court to support a finding that Ms Dinkha made the alleged representation, or that there was a contract as pleaded between Ms Dinkha and the respondents, Sarra Dawood (‘Ms Dawood’) and Jacklin Shamoon (‘Ms Shamoon’).  
Background
4	In or around March 2017, a tourist trip was organised for interested members of the Australian Mesopotamian Women Association (‘AMWA’), to travel to Israel, Lebanon and Greece.  AMWA was the fifth defendant in the Magistrates’ Court proceeding.  Ms Dinkha was the founder and former chairperson of the AMWA.  The first respondent, Ms Dawood, is the mother of the second respondent, Ms Shamoon.  Both Ms Dawood and Ms Shamoon were AMWA members and attended various meetings of the AMWA for tour group participants.  They alleged that Ms Dinkha made misleading and deceptive representations during these meetings.   
5	Prior to embarking on the tour group trip, Ms Dawood had concerns about potential difficulties arising due to an Israeli stamp in her passport from a previous trip to Israel in 2012.  Ms Dawood alleges that she made enquiries of the first defendant, the third defendant (Ms Dinkha) and the fourth defendant during various tour group meetings in relation to whether the Israeli stamp in her passport would cause problems when entering Dubai or Beirut.  Ms Dawood alleges that when she voiced her concerns she was assured by the first, third and fifth defendants that ‘there would be no problems and that they would take care of it’ (‘the representation’). 
6	Ms Dawood and Ms Shamoon departed Australia with the tour group on 14 May 2017, arriving in Beirut on 15 May 2017.  Upon arriving at Beirut International Airport, Ms Dawood was detained by Lebanese authorities for 11 hours.  As a result of the Israeli stamp in her passport, Ms Dawood was unable to obtain a Lebanese visa and was deported to Melbourne.  Ms Shamoon accompanied Ms Dawood back to Melbourne.  Ms Dawood and Ms Shamoon incurred expenses totalling $887.30 in returning to Melbourne as a result of the deportation.
The Magistrates’ Court proceedings 
7	Proceedings were commenced in the Magistrates’ Court on 15 March 2018 by Ms Dawood and Ms Shamoon against five defendants: 
(a)	Fiaz Jarjeis (‘Mr Jarjeis’) (‘the first defendant’);
(b)	Holy Apolistic Catholic Assyrian Church of the East (‘the second defendant’);
(c)	Ms Dinkha, the chairperson and founder of the AMWA (‘the third defendant’);
(d)	Sara Sawa (‘Ms Sawa’), the acting chairperson of the AMWA during the relevant period and the ‘tour leader’ for the trip (‘the fourth defendant’); and
(e)	the AMWA, an incorporated association (‘the fifth defendant’).
8	The proceeding was settled against the first defendant and discontinued against the second defendant prior to the Magistrates’ Court hearing.  
9	The claims before the Magistrates’ Court included:
(a)	a claim that the defendants were liable under s 18 ACL for misrepresenting the consequences of having an Israeli entry stamp in a passport;
(b)	breach of contract; and/or
(c)	restitution. 
10	The respondents alleged in their amended statement of claim that the representation was made by each of the first, third and fifth defendants to Ms Dawood in the presence of the tour group at various tour group meetings in the following terms: 
As the Tour included Israel, the Plaintiffs repeatedly asked the First, Third and Fourth Defendants that as the First Plaintiff had travelled to Israel on 30 May 2012 and that her passport contained a stamp indicating same, would that cause any issues with regards to entry to Dubai or Beirut (‘the Question’).
…
In response to the Question, the First, Third and Fourth Defendants assured the First Plaintiff and said words to the effect that there would be no problems and that they would take care of it (‘the Representation’). 
…
On the basis of, and in reliance of, the Tour, the Question and the Representation, the Plaintiffs agreed with the Defendants that they would arrange for the Plaintiffs to partake in the Tour (‘the Contract’). 
11	The substance of the representation also formed the basis of Ms Dawood’s and Ms Shamoon’s claim in contract.  In relation to breach of contract, it was alleged that the plaintiffs and defendants entered into a contract that was partly written, partly oral and partly implied.  The tour itinerary was recorded in writing in a Flight Centre invoice dated 23 May 2017.  The conversations at tour group meetings containing the representation were said to form part of the oral contract between the parties.  Insofar as any part of the contract was implied, the respondents claim that it was implied by statute in order to give business efficacy to the dealings between the parties.  
12	The terms of the alleged contract were, inter alia, that Ms Dawood and Ms Shamoon would pay the sum of $12,500 — accounting for $6,250 each — to the defendants in order to participate in the tour, and the defendants would: 
(a)	arrange the tour, including all flights and accommodation; and
(b)	arrange payment for the tour group to participate in the tour, including all flights and accommodation. 
13	Ms Dawood and Ms Shamoon sought damages in the sum of $13,387.30 pursuant to s 236 ACL or, in the alternative, an order pursuant to ss 237 and 238 ACL directing the defendants to pay the amount of their loss and damage.  The $13,387.30 comprised $12,500 tour costs as well costs and expenses totalling $887.30 which were incurred by Ms Dawood and Ms Shamoon as a result of the deportation.  It was also alleged that the deportation caused disappointment and distress to the plaintiffs such that they were entitled to restitution.
The Magistrate’s decision
14	The Magistrate did not produce a published decision but delivered oral reasons which were recorded in transcript.  The Magistrate concluded that the representation was made by all of the defendants, and therefore the claim against them under s 18 ACL was made out.  Relevantly, the Magistrate made the following findings: 
In conclusion, the evidence of the plaintiff having regard to all the submissions, which I’ve summarized, the relevant ones in my view is preferred, the court is satisfied on the burden of evidence the defendants were engaged in trade and commerce.
The positions of both the third and fourth defendant within the organization of the Australian Mesopotamian Women’s Association, they conducted the meetings at the venue on Mondays where the tour activities were clearly discussed. 
They arranged to collect the passports. There was collection of money and cash from the tour group and it seems in some cases, by instalments.   
15	The Magistrate also accepted the plaintiffs’ claim for breach of contract:
In the alternative, I’m satisfied that there was a breach of contract whereby the plaintiff’s entered into a contract, where they would pay money to the defendants and travel to Lebanon, Israel and Greece, when in fact the plaintiffs were deported from Lebanon and therefore did not receive the benefits or enjoyment of the tour by reasons of the misrepresentation in reference to the decision of Baltic Shipping Company and Dylan [sic].
16	The defendants, including Ms Dinkha, were ordered to pay the sum of $13,387.30 to the plaintiffs, Ms Dawood and Ms Shamoon.  This sum consisted of $12,500, being the original cost of the tour, and incidental expenses of $887.30 incurred as a result of the deportation.  The defendants were also ordered to pay the plaintiffs’ costs on the Magistrates’ Court scale.  
17	In the aftermath of the Magistrates’ Court proceeding, the claim against the fourth and fifth defendants was resolved.  The respondents received a sum of money from Ms Sawa in respect of the orders made against her, and the AMWA to date has not been pursued for the judgment sum.  Only the third defendant, Ms Dinkha, appeals this decision. 
Grounds of appeal 
18	Ms Dinkha advances two principal grounds of appeal in this proceeding.  Firstly, that the Magistrate erred in finding a breach of s 18 ACL by Ms Dinkha.  Secondly, that the Magistrate erred in finding Ms Dinkha liable to the respondents for breach of contract.  For the reasons which follow, both grounds of appeal are upheld.  
Misleading and deceptive conduct claim
19	The Magistrate erred in finding a breach of s 18 ACL by Ms Dinkha.  There was no evidence before the Magistrate to support a finding that Ms Dinkha made any representation to Ms Dawood and/or Ms Shamoon to the effect that the Israeli stamp in Ms Dawood’s passport would not cause her any difficulties upon arrival in Beirut. 
20	Ms Brijo Dawood, a member of the tour group, gave the following evidence in the Magistrates’ Court: 
Counsel: Okay. So you never heard any discussions as between Sarra Dawood and Jacklin Shamoon, and either Edwina Dinkha or Sara [Sawa] about the Israeli passport matter? 
…
Ms Brijo Dawood: Yeah, I remember that all … it was only once. One day we were getting the tickets, we were sitting, and Sarra was beside me. She was saying everything is okay with the passport …
Counsel: Sorry, who was that discussion between?
Ms Brijo Dawood: Sarra Dawood said to Sara [Sawa] there, and she was sitting beside me. Sarra Dawood, she asked Sara [Sawa] whether my passport is okay or not. The answer was yes.
Ms Brijo Dawood’s evidence was that conversations regarding the Israeli stamp in Ms Dawood’s passport occurred between Ms Dawood and Ms Sawa, not Ms Dinkha. 
21	In Ms Dawood’s evidence-in-chief, she recalled conversations with Ms Sawa and Ms Dinkha in relation to the Israeli stamp in her passport: 
Counsel: Now when this trip was organised … did you have any discussions with anybody about your passport?
Ms Sarra Dawood: Yeah, I told them. And I was told that, don’t worry everything was alright. 
Counsel: And can you tell who them is, who is them, who are they. 
Ms Sarra Dawood: I gave it to Sara and Edwina. 
…
Counsel: And what discussions did you have with Sara about your passport?
Ms Sarra Dawood: Well I said that I am concerned about there being any problems that might be — maybe they will return us. I was told that don’t worry, everything will be okay.
Counsel: And why were you concerned about that?
Ms Sarra Dawood: I thought that there might be certain objections because of my passport. 
…
Ms Sarra Dwood: I used to go to the group every Monday, and I was telling [Sara Sawa] … She said that I should be [inaudible] and there would be no objections. No objections whatsoever.
Counsel: Now do you recall having these sorts of conversations with Edwina?
Ms Sarra Dawood: Yes. I used to tell her. 
Counsel: So you’re saying used to tell both at the same time?
Ms Sarra Dawood: Yes. At the same time. 
Counsel: And what was Edwina’s response?
Ms Sarra Dawood: Edwina said that Sara is the organiser and everything in this matter. 
22	The above exchange is consistent with Ms Dinkha’s position that when the issue of the Israeli stamp in Mr Dawood’s passport was raised with her, she directed MsDawood to speak to Ms Sawa.  In cross-examination, Ms Dawood further confirmed that she gave her passport to Ms Sawa and not to Ms Dinkha. 
23	Ms Shamoon gave the following evidence in the Magistrates’ Court:
Counsel: And do you remember any conversations your mum may have had with anyone there regarding the passport?
Ms Jacklin Shamoon: Yes. It was when I wanted some itinerary for work. Myself and my mother went to the group and we spoke to Sara. My mother told her she got an Israeli stamp on her passport is this going to prevent her any harm or delay for the group once we arrived in Lebanon and the answer was no everything should be okay, and everything was organised.
24	In cross-examination, Ms Shamoon gave the following evidence:
Ms Jacklin Shamoon: My mother did mention to [Sara Sawa] that there was an Israeli stamp on her passport, and she didn’t want the group to be affected by it. To make sure that they wouldn’t hold them when we arrived.
…
Sara Sawa, told my mother, Sara Dawood that everything’s taken care of and everything organised.
Counsel: Yes, and you take that to particularly mean that everything was organised with respect to the Israeli stamp. 
Ms Jacklin Shamoon: Sure, she is the leader of the group so by all means everything was organised and taken care of. 
Ms Shamoon’s evidence supports a finding that the representation was made by Ms Sawa, and not by Ms Dinkha. 
25	Ms Sawa also gave evidence in the Magistrates’ Court proceeding and confirmed that she had two or three conversations with Ms Dawood in which Ms Dawood informed her that she did not want her passport stamped in Israel.  Ms Sawa stated that she advised Ms Dawood that she believed passports were no longer stamped in Israel.  There was no cross-examination of Ms Sawa in relation to the representation. 
26	Ms Dinkha gave the following evidence-in-chief: 
Ms Edwina Dinkha: No, with Sarra Dawood, once she approached me, she come to ask me, first when she started asking, ‘Edwina, my passport …’ I said, ‘Look, I have no idea. I have no idea at all about the tour, about the travel. Nothing. I have no idea. Go and ask Sara.’ I made it very clear for her.
Counsel: Yes. So did she actually get to ask any questions?
Ms Edwina Dinkha: She just started, I knew she started with, ‘Edwina, about my passport …’ I said, ‘I have no idea.’ She didn’t even finish her question.
27	Ms Dinkha also gave evidence that Ms Dawood was ‘always talking about the stamp on her passport to anyone sitting next to her anywhere’ and that she ‘heard once that she was worried about not stamping her passport’.
28	The following exchange occurred in cross-examination: 
Counsel: Now, you also gave evidence before that, [Sarra Dawood]. So would raise the issue about her passport. And you said, you’d just cut her off. She didn’t even get to finish what she said. Is that right?
Ms Edwina Dinkha: Yes. 
Counsel: And that’s because she raised it with you many times before. Isn’t that? So you knew what she was going to ask you. That’s why you cut her off. 
Ms Edwina Dinkha: I swear. No, no, I don’t. At that time, even if she told me there is a stamp of Israel in my passport, for me, it means nothing. I don’t know what that means … 
… 
Counsel: But she did raise it with you. Didn’t she?
Ms Edwina Dinkha: She come to raise it … I said, listen, sorry. I have no idea at all. I have no information … She asked me once, she came to us and I said, ‘I have no idea, no idea at all.’
29	The respondents’ counsel conceded that it was not put to Ms Dinkha directly in cross-examination that she made the representation to Ms Dawood.  The crux of Ms Dinkha’s evidence before the Magistrates’ Court was that she told Ms Dawood to raise any concerns she may have had in relation to the Israeli stamp with Ms Sawa.  Ms Dinkha’s account of events is consistent with the evidence given by other witnesses, including the accounts provided by Ms Dawood and Ms Shamoon.  
30	The evidence strongly supports a conclusion that Ms Dinkha never represented to either Ms Dawood or Ms Shamoon that the Israeli stamp in Ms Dawood’s passport would not pose any problems upon her arrival in Beirut.  There was no evidentiary basis for the Magistrates’ finding that Ms Dinkha made a misleading and deceptive representation in contravention of s 18 ACL. 
Breach of contract
31	The claim for breach of contract was pleaded at paragraphs [11]–[14] of the amended statement of claim in the following terms: 
As the Tour included Israel, the Plaintiffs repeatedly asked the First, Third and Fourth Defendants that as the First Plaintiff had travelled to Israel on 30 May 2012 and that her passport contained a stamp indicating same, would that cause any issues with regards to entry to Dubai or Beirut (‘the Question’).
…
In response to the Question, the First, Third and Fourth Defendants assured the First Plaintiff and said words to the effect that there would be no problems and that they would take care of it (‘the Representation’). 
…
On the basis of, and in reliance of, the Tour, the Question and the Representation, the Plaintiffs agreed with the Defendants that they would arrange for the Plaintiffs to partake in the Tour (‘the Contract’). 
Particulars
The Contract was partly written, partly oral and partly to be implied. 
Insofar as it was in writing, it was constituted by the Flight Centre Tax Invoice. A copy of Flight Centre Tax Invoices is in the possession of the solicitors for the Applicant and may be inspected by prior appointment during normal business hours. 
Insofar as it is oral it was constituted by conversations between the Plaintiffs and the First, Third and Fourth Defendants as referred to in paragraphs 11 and 12 referred to herein.
Insofar as it was implied, it was implied by statute and in order to give business efficacy to the dealings between the parties.  
32	The claim in breach of contract must fail for the following four reasons.  
33	First, the Magistrate’s finding that money was paid to the defendants is factually incorrect.  Ms Dawood gave evidence in the Magistrates’ Court proceedings that she paid for the trip in cash and gave the money to Ms Sawa.  Counsel accepted that moneys were only paid to the first and fourth defendants but no money was paid by any member of the group to Ms Dinkha.  Therefore, the factual underpinning of the Magistrate’s finding that a contract existed between the plaintiffs and Ms Dinkha is incorrect.
34	Second, the Flight Centre invoice dated 30 March 2017 which forms the foundation of the alleged contract in writing does not name of any of the defendants.  Rather, the invoice is in the name of the Sacred Heart Women’s Group, St George’s Assyrian Catholic Church, care of Mr Jarjeis.  This organisation was not a party to this proceeding nor to the Magistrates’ Court proceeding.  The respondents’ counsel accepted that it was Flight Centre who arranged bookings and payment for the airline tickets, accommodation and tour activities and not any of the defendants to the Magistrates’ Court proceeding,  although he submitted that Flight Centre was ‘merely a conduit for the mind of the touring organisers’.  Regardless, the evidence establishes that Ms Dinkha was not responsible for organising the trip and had no contact or communication with Flight Centre at all.  
35	Third, the terms of the contract as pleaded were that all of the defendants would organise the trip to Israel, Lebanon and Greece yet there is no evidence that Ms Dinkha agreed to organise such a trip.  On the contrary, the evidence was that the first and fourth defendants, Mr Jarjeis and Ms Sawa, organised the trip.   
36	The travel manager employed by Flight Centre, Janine Dine (‘Ms Dine’), gave the following evidence before the Magistrates’ Court: 
Counsel: Did you have any discussions with anybody about the issue of going to Israel first, before going for another Arab country and the deportation issues that might arise? 
Jeanine D: Only with the organizer. I mean, with my immediate contact in writing. 
Counsel: With Mr Jarjeis. And you didn’t have any contact with anybody else about an issue. 
Jeanine D: No one — No other individual. 
37	When cross-examined, Ms Dine gave evidence that she did not engage with Ms Dinkha for the purposes of organising the tour: 
Counsel: Now, Edwina gets a mention there. ‘You, Nina, Sara and Edwina.’ Would you agree with me that Edwina has had no contact at all? That is to say, what’s her full name? Edwina … Edwina Dinkha. She’s the third defendant in this case. Did you at any stage have any contact with her?
Jeanine D: No, none whatsoever. 
Counsel: Did you even know that she was on the group?
Jeanine D: Only by receiving her name as one of the participants.
38	Further, Ms Shamoon described Ms Sawa as ‘the leader of the group’, not Ms Dinkha.  Ms Dawood’s evidence was that Ms Dinkha told her Ms Sawa was ‘the organiser’.  Ms Dinkha’s unchallenged evidence was that she had no role in the organisation of the trip, which was managed by the first defendant and the fourth defendant.  
39	The claim in contract against Ms Dinkha must fail on the basis that the requisite elements for the formation of a legally binding contract are absent.  In view of my findings above that Ms Dinkha was not involved in the organisation of the trip, there is no evidence of any offer and acceptance to contract on Ms Dinkha’s part.  There is also no evidence to support a finding that the parties intended to create legal relations.  Rather, any relationship between the parties is properly characterised as the parties acting in a private capacity, not a contractual capacity.  The evidence suggests, at its highest, that Ms Dinkha was an office holder of the AMWA, which is insufficient to find that she was a party to the alleged contract.  
40	Further, there is no evidence of any discussions the respondents held with Ms Dinkha or any agreement on her part that in return for providing services in relation to the organisation of the trip, Ms Dinkha would receive any compensation.  Ms Dinkha gave evidence that she provided assistance as an interpreter during the trip on a ‘voluntary’ basis, as she had done on other occasions, because many of the members of the AMWA had very limited knowledge of English.  Ms Dinkha’s evidence was that she did not provide this assistance in order to obtain half of a free ticket for the trip which was offered to her by Ms Sawa, but because she would ‘help everyone’ in the AMWA.  The respondents’ counsel conceded that there was an absence of consideration in relation to any alleged contract with Ms Dinkha. 
41	The lack of agreement between any of the tour group participants and Ms Dinkha for Ms Dinkha to provide services, being the organisation of the tour, in exchange for compensation points strongly towards the absence of any intention to create legal relations as between the parties.  Ms Dinkha was a member of the AMWA acting in her personal capacity at all relevant times when engaging with the respondents.  Moneys were never paid to Ms Dinkha in order to facilitate the organisation of the tour, she had no role in arranging bookings for flights or accommodation, and did not obtain any commission or payment for providing services to the tour group.  The sole benefit Ms Dinkha obtained was half of a free tour ticket offered to her by Ms Sawa.  MsDinkha’s evidence before the Magistrates’ Court was that her conduct in providing ad hoc translation assistance during the tour was unrelated to the half-price ticket.  There is no evidence that the reduced ticket price was discussed as a form of consideration to be provided to Ms Dinkha in exchange for any work undertaken in organising the tour.  There was therefore no benefit promised to Ms Dinkha which would suggest that the parties intended to create binding legal relations.
42	As there is no evidence that Ms Dinkha was a contracting party, the Magistrate erred in finding Ms Dinkha was liable to the respondents for breach of contract. 
The Appeals Costs Act 1998 
43	The respondents’ counsel made an application, in the event that the appeal was upheld, for a certificate pursuant to s 4(a) of the Appeals Costs Act 1998.  I consider it appropriate to grant the certificate to indemnify the respondents both in respect of their liability to pay Ms Dinkha’s costs and their own costs of the appeal. 
Conclusion 
44	There was no basis for any findings against Ms Dinkha in the Magistrates’ Court proceeding.  Ms Dinkha’s appeal is upheld and the orders made against her in the Magistrates’ Court proceeding will be set aside.  
45	I propose to make orders in the following terms: 
1.	The appeal is allowed.
2.	The decision and order of the Magistrates’ Court of Victoria in proceeding J10809223 ordering the appellant to pay the respondents the sum of $13,387.30 plus interest and costs is set aside. 
3.	The respondents are granted a certificate under s 4(a) of the Appeals Costs Act 1998. 
46	My provisional view is that the respondents should be ordered to pay the appellant’s costs of the appeal on a standard basis, to be taxed in default of agreement.  If the appellant wishes to submit that the respondents should be ordered to pay costs on a different basis, she will be given an opportunity to advance such a submission.    
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