Case: Oceanic Sun Line Special Shipping Company Inc v Fay [1988] HCA 32 ; (1988) 165 CLR 197
Outcome: applied
Where a ticket or other document is intended by the issuer to contain terms of the contract such as an exemption clause or a foreign jurisdiction clause or other special condition, the issuer cannot rely on those terms unless, at the time of contract, it did all that was reasonably necessary to bring the terms to the other party's attention: Oceanic Sun Line Special Shipping Company Inc v Fay [1988] HCA 32 ; (1988) 165 CLR 197 at 228-229 per Brennan J; MacRobertson Miller Airline Services v Commissioner of State Taxation (WA) [1975] HCA 55 ; (1975) 133 CLR 125 at 137 per Stephen J, 143 per Jacobs J; Sydney Corporation v West [1965] HCA 68 ; (1965) 114 CLR 481 at 485 per Barwick CJ and Taylor J; see too at 503 per Windeyer J. 20 In Fay 165 CLR at 228 Brennan J (with whom Gaudron J agreed on this contractual issue at 165 CLR at 261) considered arrangements which had been made for passengers to pay the fare in Australia for a cruise in Grecian waters. They received an exchange order in Australia that would be handed over in Greece for the actual ticket. The exchange order was expressed in contractual language and reserved to the carrier the right to cancel any cruise. Brennan J considered that the contract was made when the fare was paid and that nothing in the wording of the ticket could affect the terms of the antecedent contract (165 CLR at 227). As he said, if no contract came into existence until the ticket was issued and accepted in Greece, there would be no consideration to support the carrier's right asserted in the exchange order to refuse to refund the passage money if the passenger cancelled. Brennan J referred to the consequence of forfeiture of the fare as a reason to find that (165 CLR at 228): 'The better analysis of the transaction is that the defendant was bound to issue a ticket in exchange for the exchange order in performance of a contract of carriage already made, but the defendant was given no right to introduce new conditions of carriage by printing them on the ticket. The payment of the fare may rightly be regarded as the price of an option to acquire a ticket, but the option was not to acquire a mere piece of paper. It was an option to acquire a voucher or certificate of entitlement to be carried on terms already agreed -- not on terms which the parties had yet to agree on. It was too late after the original contract was made to add conditions which were not incorporated in it.' 21 And Wilson and Toohey JJ (with whom Deane J agreed on this issue at 165 CLR at 256) said (165 CLR at 206): 'If a contract of carriage was not concluded before the respondent left Australia then it must follow that, notwithstanding that the entire passage money had been paid and that a particular cabin on a particular vessel had been allocated to him for a specified cruise and that although nothing remained for him to do except to present himself in Athens with the exchange order, the appellant came under no obligation to carry him until he did so. Such a construction of the circumstances flies in the face of common sense and cannot be accepted. When he left Australia the respondent had a contractual right to receive from the appellant on presentation of the exchange order in Athens a passage ticket which enabled him to board the vessel and occupy the specified cabin for the duration of the cruise subject only to such conditions as are found to form part of the contract.' 22 Here, new condition 6 imposed, if it were contractual and enforceable, substantial limitations on the ability of an original purchaser or a holder of a ticket in dealing with it. Many online purchasers were given no notice of this; indeed all online purchasers of the Sydney and Gold Coast concerts knew nothing of it; and those purchasing from the Big Day Out website were informed only of old condition 6, but later received tickets with the new one. It is necessary to look at each of the 4 methods of sale to appreciate their potentially differing legal consequences. 50 When the purchaser received the ticket, the terms themselves precluded any opportunity to seek a refund (see condition of sale 3) because he or she was informed that tickets would not be exchanged or replaced, nor money refunded 'after purchase'. That is, the very transaction which had been confirmed by the series of webpages and the confirmation email generated by a Ticketmaster online transaction, could not be undone if the conditions of sale were part of the transaction. Creative's argument is similar to that rejected by Wilson, Toohey, Brennan and Gaudron JJ in Fay 165 CLR at 206, 228, 261. I reject it. 51 Because these conditions were not brought to the attention of the purchaser and were not available to the purchaser, perhaps for more than six weeks after the transaction was effected and the purchaser paid the price, I am of opinion that it is quite unrealistic to regard this ordinary consumer transaction as one in which the purchaser would have been free to return the ticket thereafter and receive a refund. The ordinary reasonable member of the public would be confronted with a representation on the reverse side of the ticket that the contract denied him or her the ability to return the ticket or get a refund on ascertaining that the conditions were unsatisfactory. 52 I am of opinion that condition of sale 3 is calculated to convey to a person who bought online from Ticketmaster that the transaction was completed online at the time of the webpage transactions. It follows that it did not contain any terms on the ticket. The vague and general reference in Ticketmaster's purchaser policy to terms being on tickets, cannot substitute for the necessity to draw specifically to someone's attention unusual or significant terms affecting the proposed relationship, if it is sought to claim that the contract contains those terms. This is the more so when a term like new condition 6 is not otherwise available to a purchaser and their attention is not directed to it clearly or, as in this case, at all. 54 Creative argued that the purchaser could somehow return the ticket if, when it was ultimately received, it contained terms that were not to the purchaser's satisfaction. I am of opinion that this is unrealistic. Creative for its own commercial purposes offered facilities to the public for instantaneous online ticket sales including through the Ticketmaster web facility. If Creative wanted to impose a condition of contract in the Ticketmaster online sales such as is in the old or new condition 6, it had to bring notice of such a condition to the attention of the purchaser online at the time of the purchase ( Fay 165 CLR at 206, 228, 261). 55 Creative intends to sell over 220,000 tickets at $120 each, thereby generating revenue in the order of about $26 million. It is not unreasonable to expect it to get its contractual documents (including those online) right if it wants to rely on terms that have strict and perhaps drastic consequences for freedom of contract of purchasers from it . I am of opinion that a reasonable person considering the steps to purchase from Ticketmaster online would have considered them to amount to a contract between the purchaser and Creative, through the agency of Ticketmaster on the terms and conditions that were then and there available online. There was no incorporation by reference of provisions on the ticket. 56 When a purchaser approached a Ticketmaster over the counter office, the employee would begin entering details on a computer behind the counter. A purchaser would have to supply his or her name, work phone number, work address or some other phone number and address for the employee to continue. There were some conditions posted on a notice on the back wall of Ticketmaster offices behind the counter which may have been too small to read. Another notice entitled 'Conditions' was available for perusal. That notice stated that Ticketmaster was an agent of the seller and that all complaints were the seller's responsibility. It said that tickets were subject to the seller's conditions of sale 'a copy of which is available at the time of collection of the ticket'. Here, this must be a reference to the actual provisions printed on the back of the ticket, because it is common ground that Ticketmaster had no other material available at its direct booking offices which set out terms of the contract which Creative proposed to enter with an intending over the counter purchaser.