De Jong v Carnival Plc (No 2) - [2016] NSWSC 1024

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: De Jong v Carnival PLC (No 2) [2016] NSWSC 1024
Hearing dates: 22 July 2016
Date of orders: 22 July 2016
Decision date: 22 July 2016
Jurisdiction: Common Law
Before: Beech-Jones J
Decision:
1.   The Plaintiff’s Notice of Motion filed 29 April 2016 and the Amended Notice of Motion filed 22 July 2016 be dismissed.
2.   The balance of the Defendant’s Notice of Motion filed 29 January 2016 is stood over to 2.00 pm on Friday, 2 September 2016.
3.   The Plaintiff to pay the Defendant’s costs of the Notice of Motion filed 29 April 2016 and the Amened Notice of Motion filed 22 July 2016.

Catchwords: PROCEDURE – notice of motion – separate determination of a liability – utility of separate questions – whether will avoid costs – effect on application for security for costs – motion dismissed
Legislation Cited: Civil Procedure Act 2005 (NSW)
Competition and Consumer Act 2010 (Cth)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Crawley v Vero Insurance Ltd (2012) NSWSC 593
De Jong v Carnival PLC (2016) NSWSC 347
Jarvis v Swan Tours Limited [1973] 1 All ER 71
Southwell v Bennett (2010) NSWSC 1372
Tepko Pty Ltd v Water Board (2001) HCA 19; (2001) 206 CLR 1
Category: Procedural and other rulings
Parties: Lucretia De Jong – Plaintiff
Carnival PLC t/as Carnival Cruise Line
ACN 107998443 – Defendant
Representation:
Counsel:
J.E. Rowe – Plaintiff
J.A. Hogan-Doran and S Jayasuriya – Defendant
Solicitors:
Arnold Thomas & Becker (Melbourne) – Plaintiff
Sparke Helmore – Defendant

File Number(s): 2015/254964
Publication restriction: Nil

EX TEMPORE Judgment

HIS HONOUR: These proceedings are a representative action under Pt 10 of the Civil Procedure Act 2005 (NSW) (“CPA”). The representative party, Lucretia De Jong, sues the defendant Carnival PLC trading as Carnival Cruise Line (“Carnival”) in her own right and on behalf of all other persons who booked and paid for a cruise that left Sydney on 10 March 2015 bound for Noumea and New Caledonia but which instead travelled to Melbourne and Hobart.
By notice of motion filed 29 April 2016 Ms De Jong sought an order under subsection 62(2) of the CPA for the determination of a particular question of fact separate from other issues in the proceedings and before the trial. On the hearing of the motion today Ms De Jong filed an amended motion which revised the proposed question as follows:

"REVISED PRELIMINARY QUESTION
i.    What information did the defendant have about Cyclone Pam before the ship left Sydney?
ii.    Did the defendant decide the ship was not sailing on the advertised itinerary to the Pacific islands before it left Sydney?
iii.    If 2 was in the affirmative,
a)   When did the defendant make that decision, and
b)    When should the defendant have made that decision?
iv.    If 2 was in the negative,
a)    Should the defendant have made that decision, and
b)   If so, when should the decision have been made?"

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.

Continue reading De Jong v Carnival Plc (No 2)

Details

AGLC: De Jong v Carnival PLC (No 2) [2016] NSWSC 1024
Case: [2016] NSWSC 1024
Decision Date: 22 July 2016

CaseChat Overview and Summary

The parties involved in De Jong v Carnival Plc (No 2) were the plaintiff, De Jong, and the defendant, Carnival Plc. The case revolved around a dispute concerning a motion for separate determination of liability. De Jong had filed a motion seeking to separate the liability issue from the overall proceedings, arguing that such a determination would expedite the process and potentially avoid costs. Carnival Plc opposed this motion, contending that a separate determination would not necessarily lead to cost savings and could complicate the application for security for costs. The court had to decide whether the utility of separate questions would indeed avoid costs and if such a determination would have an impact on the application for security for costs.

The legal issues before the court included the appropriateness of determining liability separately from the broader proceedings, the potential for such a determination to expedite the case and reduce costs, and the implications for any application for security for costs. The court had to balance the principles of efficiency and cost management in litigation against the need to avoid unnecessary fragmentation of the proceedings. It was also required to consider how a separate determination of liability might affect the defendant's application for security for costs, ensuring that the procedural rules were applied in a manner that did not unduly prejudice either party.

In dismissing the motion, the court found that a separate determination of liability would not necessarily achieve the desired outcome of avoiding costs or expediting the proceedings. The court held that the potential benefits of such a determination were not sufficiently compelling to justify the additional complexity and risk of creating separate proceedings. Furthermore, the court concluded that a separate determination of liability could indeed affect the application for security for costs by altering the financial risks and burdens on the defendant. Consequently, the motion for separate determination was dismissed, reflecting the court's view that the procedural advantages did not outweigh the potential drawbacks and uncertainties.

Orders