Correa v Carnival PLC - [2015] VSC 718

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PERSONAL INJURIES LIST

S CI 2015 03000

CAROLINE CORREA	Plaintiff
v
CARNIVAL PLC (T/AS CARNIVAL AUSTRALIA)	Defendant

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JUDGE:	ZAMMIT J
WHERE HELD:	Melbourne
DATE OF HEARING:	4 December 2015
DATE OF RULING:	17 December 2015
CASE MAY BE CITED AS:	Correa v Carnival PLC
MEDIUM NEUTRAL CITATION:	[2015] VSC 718

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CROSS-VESTING APPLICATION – Interests of justice – Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) s 5(2)(b)(iii) – Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 23.01 – Application to stay or dismiss proceedings – Inherent jurisdiction – Abuse of process – Exclusive jurisdiction clause – Connecting factors

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D Harrison	Arnold Thomas & Becker
For the Defendant	Ms K A Brazenor	HWL Ebsworth

HER HONOUR:

Introduction

Pursuant to the Amended Summons dated 14 August 2015, the defendant, Carnival PLC (‘Carnival’), seeks two main types of relief in this application. Firstly, an order that the proceeding be transferred to the Supreme Court of New South Wales pursuant to s 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-Vesting) Act1987 (Cth) (‘Cross-Vesting Act’). In the alternative, the defendant submits that the proceeding be stayed or dismissed pursuant to r 23.01 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) or the Court’s inherent jurisdiction.

Background

Caroline Correa (‘the plaintiff’) was on a 14 day cruise operated by Carnival PLC (‘the defendant’) which left Melbourne on 21 December 2013 and was travelling to ports in New Zealand and back to Melbourne (‘the cruise’). On the night of 25 December 2013, in the nightclub of the ship, the plaintiff slipped and fell while descending steps from the dance floor.

The plaintiff alleges that she slipped and fell because the steps were wet, slippery and unsafe. As a result of the fall, the plaintiff claims she has suffered injury, loss and damage. The injuries include a fractured right femur and a damaged right knee.

The plaintiff filed a Writ and Statement of Claim on 12 June 2015. The defendant filed a Summons on 15 July 2015 and an Amended Summons on 14 August 2015. The defendant relies on the following:

(a) Affidavit of Stuart Allison affirmed on 4 August 2015;

(b) Affidavit of Lauren Miller affirmed 13 August 2015; and

(c) Outline of submissions dated 24 August 2015.

The plaintiff relies on:

(a) Affidavit of Caroline Correa sworn 18 November 2015; and

(b) Outline of submissions dated 3 December 2015.

Defendant’s submissions

Relief sought under the Cross-Vesting Act

The claim is brought pursuant to s 267(4) of the Australian Consumer Law (‘ACL’), whereby the plaintiff may bring an action against the defendant to recover damages for any loss or damage suffered because of the failure to comply with the guarantee. The guarantee in the present case arises under s 60 of the ACL which requires that services (the cruise) should be rendered with due care and skill. The plaintiff alleges that the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] VSC 718
Decision Date: 17 December 2015

CaseChat Overview and Summary

Correa initiated proceedings against Carnival PLC in the Supreme Court of Victoria. Correa alleged that she was injured on a cruise ship operated by Carnival. Carnival moved to stay or dismiss the proceedings, arguing that the matter was subject to an exclusive jurisdiction clause in the cruise ticket contract, which mandated resolution in the United Kingdom. The legal issues before the court included whether the Supreme Court had jurisdiction to hear the case and whether it was appropriate to stay the proceedings in light of the exclusive jurisdiction clause.

The court considered the nature of the dispute and the applicability of the exclusive jurisdiction clause. The court noted that the clause was clear and unambiguous, but it also had to consider whether staying the proceedings would be in the interests of justice. The court found that the exclusive jurisdiction clause did not deprive it of jurisdiction, as the clause did not meet the strict criteria for cross-vesting under the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth). The court also considered whether it was appropriate to stay the proceedings. The court found that staying the proceedings would not be in the interests of justice, as the connecting factors between the parties and the dispute were stronger in Victoria than in the United Kingdom. The court noted that the injury occurred on a ship registered in Australia, and the parties had a significant connection to Victoria.

The court dismissed Carnival's application to stay or dismiss the proceedings. The court held that it had jurisdiction to hear the case and that it was not appropriate to stay the proceedings. The court found that the connecting factors between the parties and the dispute were stronger in Victoria than in the United Kingdom, and that staying the proceedings would not be in the interests of justice. The court also noted that the exclusive jurisdiction clause did not deprive it of jurisdiction, as it did not meet the strict criteria for cross-vesting under the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth). The court emphasised the importance of considering the interests of justice in determining whether to stay or dismiss proceedings in light of an exclusive jurisdiction clause. The court's decision provides guidance to parties and courts when dealing with exclusive jurisdiction clauses in cross-border disputes.

Orders