Business and Law (LAW201A) Report: Holiday Brochure Legal Analysis

This report critically analyzes a holiday brochure for a Qantas Holidays Thailand trip, evaluating its compliance with Australian Consumer Law (ACL) and contract law principles. The report identifies key information, including travel tips, package details, and booking conditions, and assesses them for potential legal issues. It examines the brochure's adherence to ACL guidelines, focusing on misleading or deceptive advertising, bait advertising, and false representation. Furthermore, the report analyzes the contract terms, including package validity, insurance, taxes, and refund policies, alongside price inclusions and exclusions. It highlights potential violations of ACL, such as hidden charges and lack of a detailed itinerary, and discusses the validity of exclusion or limitation clauses. The report also references relevant legal cases and legislation to support its analysis and conclusions regarding the brochure's legal standing and potential liabilities.

Business and Law

Table of Contents
Introduction...............................................................................................................................2
Identification of the key information given in the brochure.....................................................3
Analysis of details in the brochure based on principles of contract law...................................3
Identification of legal issues in the brochure.............................................................................5
Identification of exclusion or limited clauses in the brochure..................................................6
Conclusion..................................................................................................................................7
References..................................................................................................................................8
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Introduction
A holiday package is advertised and sold by travel agents or tour operators which
include information about arrangements of transportation and accommodation of a holiday
plan. A holiday brochure contains thorough details about the holiday package such as
organised activities, hotel plans, rental vehicle facilities, and others. As per Kawashima
(2010), the culture of holiday brochure has gained popularity in past few years since more
and more people prefer to pre-book their holidays, and they like to know all the necessary
details about their trip. It contains detailed information regarding the trip, and the travelling
agent is required to ensure that the details given in the brochure are correct. The company
has to ensure that it complies with the regulations given by Australian legislation regarding
contract and consumer protection law. The purpose of this report is to analyse the holiday
brochure for ‘Qantas Holidays Thailand trip’. This report will evaluate the information given
in the holiday brochure and analyse various factors such as terms and conditions,
warranties, and details given by Qantas Holidays. This report will focus on identifying any
detail in the brochure which can be constituted as misleading, deceptive, bait advertising or
false representation. Furthermore, any exclusion or limitation clause given in the brochure
will be evaluated to understand whether such clause is valid.
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Identification of the key information given in the brochure
While issuing a holiday brochure, travel companies have to ensure that they comply
with the Australian Consumer Law (ACL) which has issued guidelines for protecting
consumer rights and governing trade policies in Australia. The main objective of the law is to
ensure that the interest of customers is protected from unfair trade practices. It also
ensures that appropriate remedies are available for customers in case a corporation
breaches the policies of ACL (Consumer Law, 2018). Moreover, the ACL provides a standard
of safety for customers and liability of manufacture towards their products. Qantas Holidays
has over 40 years of experience in tours and travelling field (Qantas, 2018a). The company is
an expert in creating holiday packages which suit a wide variety of taste and budgets of
customers. The ‘Thailand’ holiday brochure of the company offers an ‘essential holiday
package’ for three nights and four days. Firstly, the brochure contains details regarding
travel tips which include essential information about Thailand and various factors which are
helpful for customers such as currency, language, how to get there, visas, passports,
shopping and others (Qantas, 2018b).
Further, information about ten must-visit places in Thailand and information about
most visited places are given such as Bangkok, Phuket, Koh Phi Phi, Krabi and others. Details
regarding transfers and sightseeing are given in the brochure which includes information
about city and temples tour, grand palace tour, floating market, Bai Pai cooking class and
others. Details regarding accommodation are next in the brochure. The accommodation is a
significant part of the trip; therefore, this section is given in details in the brochure (Qantas,
2018b). Detailed information about popular hotels and services provided by them are given
in the brochure. Furthermore, various other holiday packages, other than the essential
package, are given in the brochure which is based on different locations in Thailand such as
eight-night Phuket family fun and three-day jungle lake safari tour (Qantas, 2018c). Lastly, in
the brochure, booking conditions are given which provide essential terms and conditions
about the trip.
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Analysis of details in the brochure based on principles of contract law
A contract is a legally binding agreement which binds its parties into its terms which
are enforceable upon both parties. In case of a holiday package, the customers and the
travel agent entered into a bilateral contract in which the agent assures that the details
given in the brochure regarding the holiday trip are correct and both parties agreed to the
terms and conditions given in the brochure. Following are different terms and conditions
given in the brochure of Qantas Holidays which are binding upon customers and the
company.
Package validity: It is referred to the duration of the holiday trip. The essential
package is for three nights and four days whereas other packages are for more or fewer
days.
Travel Insurance: The terms and conditions of the brochure clearly specify that the
company recommend its customers to take travel insurance in order to cover their travel
arrangements. Furthermore, various hotels also provide the facility of customer insurance,
and such information is included in their details (Qantas, 2018b).
Health: At the beginning of the brochure, it is specified by the company that there is
a risk of malaria in many rural areas of Thailand; therefore, it is recommended that the
customers plan with their qualified doctor before going off the trip. Furthermore, not details
regarding medical facilities available during the trip or in hotels are given in the brochure.
Taxes: It is included in the brochure that the trip is subject to GST and customers
have to pay other factors as well such as fuel surcharges, flight taxes, exchange rate factors
and others (Qantas, 2018b).
Refund policy: It is clearly specified in the brochure that if the customers cancel their
trip after booking, then all these deposits will be forfeited. Furthermore, customers will
have to pay 100 percent of the fees imposed by the suppliers. After the beginning of the
travel, no refund or cancellation can be commenced.
Price exclusions: In the accommodation sections, the details regarding a number of
hotels are given. In these hotels, details about facilities given by the hotel are excluded from
the basic price of hotel booking. For example, the price of Wi-Fi is excluded from the base
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offer of hotels in which Wi-Fi sign is not available. Similarly, other signs such as 24x7, luxury
and hut sign represented different service and their price and excluded from the base price.
Price inclusions: Various details regarding the services of the hotel are included in its
base price. For example, many hotels offer facilities such as Wi-Fi, 24x7 check-in and luxury
facilities. The costs of these services are included in the base price of hotels and the holiday
package (Qantas, 2018b).
Identification of legal issues in the brochure
Based on the critical analysis of the brochure of Qantas Holidays Thailand trip, there
are various legal issues in the brochure which can be constituted as misleading, deceptive,
bait advertisement, false representation or offering of gift or prizes. The first key issue with
the brochure is that it did not contain a schedule of the trip which includes places where
customers will be visiting. In the essential tour package, details regarding each day of the
customers are given, however, the information regarding timing and locations are missing
(Qantas, 2018b). Furthermore, thorough information about tour packages other than
Bangkok is not given for customers. Only basic details about the trip and locations are given,
however, proper schedule and timings are missing from the brochure. It is given in various
places in small words than the terms and conditions imposed by the suppliers are excluded
from the tour price. Additionally, in the terms and conditions section, it is given that the
company will not be accountable for 100 percent of the charges imposed by suppliers
(Qantas, 2018d). It shows that there are various hidden charges such as taxes, service
charges, surcharges and others which are excluded from the brochure.
Section 29 of ACL provides that corporations should not issue advertisements which
are misleading or deceptive or likely to mislead or deceive (ACL, 2018). The hidden and
additional charges imposed by the suppliers come under the definition of misleading and
deceptive advertisement since the company is promoting as all price include deal. In
Ellul
and Ellul v Oakes [1972] 3 SASR 377 case, it was held by the court that the parties to a
contract must make its terms promissory in nature. In this case, property was bought by
Ellul which was situated in Oakes and in its listing term it was written that the land is
severed. Ellul later found out that the property was not severed and Ellul claimed for
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damages. The court accepted the claim for damages made by Ellul by stating that parties
must intend that the terms of the contract are promissory in nature (Barker, Grantham &
Swain, 2015). Similarly, the claims made by Qantas Holidays in its brochure are promissory
in nature based on which customers can claim for damages in case the company does not
fulfil the terms.
Thus, it is necessary that all the information included by Qantas Holidays in its
brochure is correct and it did not mislead or deceive customers. Qantas is required to
maintain transparency when it comes to its pricing details based on which it will be easier
for the customer to plan for their trip and avoid any hidden charges. Furthermore, at the
beginning of the brochure, the company has included an advertisement about its airline in
which it is offering gift and prizes to customers who fly to this trip in the airline of the
company. The company is using the gift and prizes to attract customers to its airline it is
providing them 1 Qantas point for every $1 spent by customers on during the holiday
(Qantas, 2018e). This can also be constituted as bait advertisement since Qantas airline.
Thus, the company should be more open about its pricing strategy, and it should not use the
brochure to attract customers for its airline.
Identification of exclusion or limited clauses in the brochure
In the terms and conditions section of the brochure, Qantas Holidays has provided
that it acted as the agent for its Suppliers which include transportation, accommodation or
tour provider. All the bookings made by the customers are subject to terms and condition,
and the liability is imposed on each supplier. The company exempts itself from liability in
respect to anything false, inaccurate, incomplete, and misleading and which cause
disappointment, error, damage, inconvenience, injury, death or shock to the customers. This
exclusion clause eliminates the liability of the company towards its customers, and it
terminates the right of customers to file a suit against the company. Furthermore, it is also
included in the brochure that the company not in control of the manner in which details is
included in the brochure. As per the principle of exclusion clause, the parties are required to
bring the term into attention of the contracting party as given in the judgement of
Olley v
Marlborough Court [1949] 1 K.B. 532 (Stone, 2013).
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Section 7 of the Unfair Contract Terms Act 1977 provides the liability of a party
regarding description or sample of the quality of fitness for any particular purpose which
cannot be excluded as long as the satisfaction of such requirement is reasonable
(Legislation, 2018). Based on this provision, Qantas Holidays cannot protect itself from the
liability based on the exclusion clause regarding the products displayed on its contract.
Furthermore, in
Baltic Shipping Company v Dillon [1993] 176 CLR 344 case, it was held by
the court that the parties are liable for paying damages in case they failed to include
complete and correct information in the brochure (Turner, 2013). Therefore, Qantas
Holidays cannot protect itself from the liability of misleading or deceptive advertisement by
adding an exclusion clause that its suppliers will face all the liability.
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Conclusion
In conclusion, the brochure issued by Qantas Holidays regarding its Thailand trip
includes all the necessary information for its customers to learn about whole trip. The
company has provided thorough information about the places to visit and accommodation
options available for customers based on which they can choose between different options.
Various terms and conditions given in the brochure are evaluated in the report such as
included and excluded prices, validity, insurance and others. Furthermore, various legal
issues raised in the brochure based on the terms of the brochure are evaluated in the report
as well. Although, the corporation has prepared a detailed brochure, however, it can be held
liable for breaching section 29 of ACL and using gifts to attract customers and influencing
their decisions. The exclusion clause given in the brochure did not eliminate the liabilities of
the company based on it can be held liable by customers for providing misleading
information in the brochure.
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References
ACL. (2018).
Australian Consumer Law (Cth). Retrieved from
https://www.australiancontractlaw.com/legislation/cthacl.html
Barker, K., Grantham, R., & Swain, W. (Eds.). (2015).
Law of Misstatements: 50 Years on
from Hedley Byrne v Heller. London: Bloomsbury Publishing.
Consumer Law. (2018).
Terms of Reference. Retrieved from
http://consumerlaw.gov.au/consultations-and-reviews/review-of-the-australian-
consumer-law/terms-of-reference/
Kawashima, K. (2010). Japanese working holiday makers in Australia and their relationship
to the Japanese labour market: Before and after.
Asian studies review,
34(3), 267-
286.
Legislation. (2018).
Unfair Contract Terms Act 1977. Retrieved from
https://www.legislation.gov.uk/ukpga/1977/50/section/7
Qantas. (2018a).
About Qantas Holidays. Retrieved from https://packages.qantas.com/
Qantas. (2018b).
Thailand. Retrieved from
https://packages.qantas.com/uploads/flipbook/QH_Thailand_1819/index.html
Qantas. (2018c).
Thailand Holidays. Retrieved from
https://packages.qantas.com/destinations/thailand-holidays
Qantas. (2018d).
Booking and Advisory Services - Terms and Conditions. Retrieved from
https://packages.qantas.com/general-terms-conditions
Qantas. (2018e).
Qantas Points with Qantas Holidays. Retrieved from
https://packages.qantas.com/qantas-frequent-flyer
Stone, R. (2013).
Q&A Contract Law 2013-2014. Abingdon: Routledge.
Turner, C. (2013).
Contract law. Abingdon: Routledge.
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