Scenic Tours

Scenic Tours Class Action 


Omni Bridgeway is funding an open class action on behalf of passengers who booked and travelled on a Scenic Tours Pty Ltd (including Evergreen Tours and Emerald Waterways branded) river cruise from 1 June 2018 to 31 December 2018 on the Rhine-Moselle-Main-Danube river systems (Class Action).

Passengers on river cruises operated by Scenic Tours between 1 June 2018 and 31 December 2018 on the Rhine-Moselle-Main-Danube river systems may have a claim against Scenic Tours for damages and compensation if their cruise was disrupted to such an extent that they did not receive the cruise experience that Scenic Tours had promised and that they had paid for.

The Class Action is being funded and run as a litigation funding scheme, named Scenic Tours Litigation Funding Scheme (the Scheme).

Omni Bridgeway Ltd is the holder of Australian Financial Services Licence 557079 (“AFSL 557079”). Omni Bridgeway’s funding of the class action is not and is not intended to be provided under AFSL 557079 but relies upon the operation of litigation funding schemes being an exempt financial product pursuant to the Corporations Regulations 2001. Your objectives, financial situation and needs have not been taken into account and you should consider whether the class action is appropriate for you. 


Causes of Action


Broadly, it is alleged that Scenic Tours breached the consumer guarantees contained in the Australian Consumer Law by operating river cruises during the European Summer of 2018 on the Rhine-Moselle-Main-Danube river systems that did not meet the experience and level of service that the passengers had been promised and paid for.

The Class Action is being run by law firm, Somerville Legal.


How much will it cost to be part of the Class Action?


The Class Action is funded by Omni Bridgeway on a “no win, no pay” basis. If the class action is successfully resolved and there is a recovery of compensation, Omni Bridgeway will be entitled to reimbursement of the costs it has spent plus a commission from such recovery only.

There are no ‘out of pocket’ costs for group members to pay. Group members do not have to pay anything in the event that the class action is unsuccessful, as Omni Bridgeway agrees to pay any legal costs that might be awarded to Scenic Tours.

Who are the Group Members in the Class Action?


You are a Group Member in the Class Action, and eligible to apply to join the Scheme, if:

  1. you booked a place on or travelled on any of the river cruises operated by Scenic Tours as listed below;
  2. suffered loss or damage because of the conduct of Scenic Tours described in the Statement of Claim;
  3. are not:
    1. legal practitioners or funders providing (respectively) services to Mr Kelly and other Group Members in order to assist them to recover the relief claimed in the Class Action; or
    2. judicial officers of the Supreme Court of New South Wales of the High Court of Australia.

The relevant river cruises are:

  1. NBU180618.1 – Scenic ‘Gems of the Danube’ cruise from Nuremberg to Budapest commencing on 18 June 2018;
  2. STC250618.1 – Scenic ‘Jewels of Europe’ cruise from Amsterdam to Budapest commencing on 25 June 2018;
  3. NBU120718.1 – Scenic ‘Gems of the Danube’ cruise from Nuremberg to Budapest commencing on 12 July 2018;
  4. NBU180718.1 – Scenic ‘Gems of the Danube’ cruise from Nuremberg to Budapest, commencing on 18 July 2018;
  5. STC250718.2 – Scenic ‘Jewels of Europe’ cruise from Budapest to Amsterdam, commencing on 25 July 2018;
  6. STC300718.2 – Scenic ‘Jewels of Europe’ cruise from Budapest to Amsterdam, commencing on 30 July 2018;
  7. EWCR040818.2 – Evergreen ‘Splendours of Europe’ cruise from Budapest to Amsterdam, commencing on 4 August 2018;
  8. STC060818.1 – Scenic ‘Jewels of Europe’ cruise from Amsterdam to Budapest, commencing on 6 August 2018;
  9. STC150818.1 – Scenic ‘Jewels of Europe’ cruise from Amsterdam to Budapest commencing on 15 August 2018;
  10. SCT200818.1 – Scenic ‘Jewels of Europe’ cruise from Amsterdam to Budapest, commencing on 20 August 2018;
  11. STC030918.2 – Scenic ‘Jewels of Europe’ cruise from Budapest to Amsterdam commencing on 3 September 2018;
  12. EWCR080918.2 – Evergreen ‘Splendours of Europe’ cruise from Budapest to Amsterdam, commencing on 8 September 2018;
  13. STC170918.1 – Scenic ‘Jewels of Europe’ cruise from Amsterdam to Budapest commencing on 17 September 2018;
  14. NBU200918.1 – Scenic ‘Gems of the Danube’ cruise from Nuremberg to Budapest, commencing on 20 September 2018;
  15. STC011018.2 – Scenic ‘Jewels of Europe’ cruise from Budapest to Amsterdam commencing on 1 October 2018;
  16. STC101018.1 – Scenic ‘Jewels of Europe’ cruise from Amsterdam to Budapest, commencing on 10 October 2018;
  17. STC151018.2 – Scenic ‘Jewels of Europe’ cruise from Budapest to Amsterdam, commencing on 15 October 2018;
  18. AMBC221018.1 – Scenic ‘Rhine Highlights’ cruise from Amsterdam to Basel, commencing on 22 October 2018;
  19. STC241018.2 – Scenic ‘Jewels of Europe’ cruise from Budapest to Amsterdam, commencing on 24 October 2018;
  20. STC071118.1 – Scenic ‘Jewels of Europe’ cruise from Amsterdam to Budapest commencing on 7 November 2018; and
  21. CHMA211118.2 – Scenic ‘Christmas Markets’ cruise from Budapest to Amsterdam commencing on 21 November 2018;

Opt Out


The Scenic Class Action is subject to an opt out process, which was ordered by the Supreme Court of New South Wales. The deadline to opt out was 4pm (AEST) on 27 September 2024 which has now since passed.

Further information regarding the opt out process is available in the Opt Out Notice here.

How can affected group members participate in the Class Action?


If you are eligible to join the class action, you can apply to be a member of the Scheme and to participate in the class action by completing and returning the Application Form.

You may wish to register an expression of interest in respect of the Scheme to keep updated. Please note that registering an expression of interest with Omni Bridgeway will mean that you will likely be a “Passive Member” as that term is defined in the Scheme’s Constitution. Omni Bridgeway also notes the following:

  • You may apply to join the Scheme as a Claimant Member by submitting an Application form which can be accessed using the above link;
  • By registering an interest, you consent to the Scheme’s Trustee, Omni Bridgeway Investment Management Limited or Omni Bridgeway Limited contacting you and providing further information in relation to litigation funding; and
  • You should consider with or without the assistance of your professional advisers whether or not to participate in the litigation to which the Scheme relates

If you have any queries or if you would like to request a copy of the Constitution, you can contact the Omni Bridgeway Client Liaison Team by email [email protected] or free call 1800 016 464.

If you are eligible and would like to participate in the Scenic Tours Class Action, we encourage you to return your Application Form as soon as possible.

Notices

 

Notice dated 1 August 2024 – Amendment to Scheme

Omni Bridgeway Investment Management Pty Limited (ACN 642 086 593) (OBIML) gives notice that on 31 July 2024, the Scenic Tours Litigation Funding Scheme Constitution was amended. The amendments reflect regulatory changes which stemmed from: (i) the decision in LCM Funding Pty Ltd v Stanwell Corporation Limited [2022] FCAFC 103 (referred to in the Notice dated 27 June 2022), which determined that a litigation funding scheme was not a managed investment scheme; and (ii)  the coming into force, on 10 December 2022, of the Corporations Amendment (Litigation Funding) Regulations 2022, which again provided for an exemption to the requirement to hold an Australian Financial Services Licence (AFSL) with respect to services provided for or in connection with litigation funding schemes.

The relevant amendments do not seek to alter the rights and responsibilities of Claimant Members of the Scheme nor do they affect the funding obligations of the Funder Member (Omni Bridgeway (Fund 5) Australian Invt. Pty Limited). A copy of the amended constitution will be provided to Claimant Members upon request by emailing [email protected].

OBIML further gives notice that:

  • the Scenic Tours Litigation Funding Scheme was deregistered by ASIC on 25 December 2022 (on the request of OBIML);
  • OBIML surrendered its AFSL, which was accordingly cancelled by ASIC on 28 March 2023;
  • the Product Disclosure Statement for the Scenic Tours Litigation Funding Scheme dated 24 September 2021 will no longer be available;

Claimant Members, Passive Members and/or prospective Members of the Scheme should consult the Class Action Answers to Questions, which can be provided to Claimant Members on request by emailing [email protected] (or by consulting our website) and Passive Members and/or prospective Members who register their interest.

Various notices below make reference to: (i) the Product Disclosure Statement which was then applicable to the Scheme; (ii) the AFSL previously held by OBIML; and (iii) the Australian Registered Scheme Number that previously applied to the Scheme. Please bear in mind that this information was correct as at the time the applicable notices were posted. We encourage you to consult the Class Action Answers to Questions and/or contact us if you have any concerns or queries regarding the Scheme.

Notice dated 30 July 2024 - Change of Name of Trustee

Omni Bridgeway Investment Management Pty Limited gives notice that its status has recently changed from a public company limited by shares to a proprietary company limited by shares. Its name has accordingly changed from Omni Bridgeway Investment Management Limited to Omni Bridgeway Investment Management Pty Limited. It will continue to use to the shorthand abbreviation “OBIML” in order to avoid any confusion.

Notice dated 12 August 2022 – Proceedings now filed – Scenic Tours (ARSN 649 659 094) (Scheme)

Omni Bridgeway Investment Management Limited (ACN 642 086 593 and AFSL No. 524023) gives notice that the proceedings for this open class action have now been filed in the Supreme Court of New South Wales, being Darran Kelly v Scenic Tours Pty Limited (Proceeding No. 238642 of 2022).  

Notice dated 12 August 2022 – Issue of Supplementary PDS 

Please note a Supplementary PDS dated 12 August 2022 has been issued by the responsible entity for the Scheme.  

The changes that are made to the PDS by the SPDS reflect that the Class Action against Scenic Tours Pty Ltd (the Class Action) is being brought on an ‘open’ basis, rather than as a ‘closed’ class action.  The effect of the Class Action being filed on an ‘open’ basis is that each person who falls within the class of Group Members defined in the Statement of Claim (as set out above) will be included in the class covered by the Class Action unless they take steps to positively opt out of the Class Action.

Please refer to the Supplementary PDS for further information.  The Supplementary PDS should be read in conjunction with the existing PDS, both of which are available using the links to the PDS on this page. 

Notice dated 27 June 2022 – Scenic Tours (ARSN 649 659 094) (Scheme) – Federal Court’s Decision on Litigation Funding Schemes

On 16 June 2022 the Full Court of the Federal Court of Australia delivered judgment in LCM Funding Pty Ltd v Stanwell Corporation Limited  [2022] FCAFC 103. The Court decided that a litigation funding scheme is not a managed investment scheme.

OBIML is considering the impact of the judgment on the managed investment scheme that has been registered in respect of this class action and will provide a further notice to scheme members and prospective scheme members.

OBIML does not anticipate that the decision has any impact on the class action itself, and OBIML expects the class action to continue to progress. 

Notice dated 14 June 2022 - Extension to Deadline for Applications – Scenic Tours Litigation Funding Scheme (ARSN 649 659 094).

In accordance with section 10 of the Product Disclosure Statement dated 24 September 2021 (PDS) for the Scheme, Omni Bridgeway Investment Management Limited (ACN 642 086 593 and AFSL No. 524023) (Issuer) has determined to extend the deadline for applications to participate in the Scheme from 15 June 2022 to 15 September 2022. 

This means that Omni Bridgeway (Fund 5) Australian Invt. Pty Limited (ACN 635 083 984, Authorised Representative Number 1283704) (Funder) currently proposes to fund a ‘closed’ Class Action which is limited to a class that comprises only those potential claimants who have applied to be a member of the Scheme prior to the extended deadline, which is now 15 September 2022. A Supplementary Product Disclosure Statement will be issued for the Scheme if it is proposed that the Class Action be pursued on an ‘open’ basis, which will explain the means by which potential claimants can become a member of the Scheme in those circumstances.

Terms not defined in this Notice have the same meaning as in the PDS.

Applications to participate in the Scheme will only be accepted on the Application Form contained in or accompanying the PDS.

If you are eligible and would like to participate in the Scenic Tours Class Action, we encourage you to return your Application Form as soon as possible. Further details are set out in the PDS which is available and can be accessed using the link below or by contacting Omni Bridgeway using the details below.