De Jong v Carnival Plc (No 3) - [2016] NSWSC 1461

Supreme Court

New South Wales

Medium Neutral Citation: De Jong v Carnival PLC (No 3) [2016] NSWSC 1461
Hearing dates: 16 September 2016
Date of orders: 14 October 2016
Decision date: 14 October 2016
Jurisdiction: Common Law
Before: Beech-Jones J
Decision:
(1) On or before 17 January 2017 the plaintiff provide security for costs in the amount of $145,000.00.

(2) The defendant’s notice of motion filed 29 January 2016 be stood over to 31 January 2017 at 9.30am.

(3) The plaintiff pay the defendant’s costs of the notice of motion filed 29 January 2016 to date.
(4) The parties have liberty to apply on 2 days’ notice.
Catchwords: REPRESENTATIVE ACTION – costs – notice of motion seeking an order for security for costs –allocation of risks of litigation
Legislation Cited: Civil Procedure Act 2005 (NSW)
Competition & Consumer Act 2010 (Cth)
Local Court Act 2007 (NSW)
Local Court Rules
Cases Cited: Baltic Shipping Company v Dillon [1993] HCA 4; (1993) 176 CLR 344
De Jong v Carnival PLC [2016] NSWSC 347
De Jong v Carnival PLC (No 2) [2016] NSWSC 1024
Jarvis v Swans Tours Ltd (1973) QB 23
Madgwick v Kelly [2013] FCAFC 61; 212 FCR 1
Paul Baker as Plaintiff Representative of 165 Plaintiff Group Members v The Partnership of Anne Patricia Larter, Alan Jones, Miraleste Pty Ltd t/as USG Partner and Leigh Johnson t/as STC Sports Trading Club [2016] NSWSC 1194
Category: Procedural and other rulings
Parties: Lucretia De Jong (Plaintiff)
Carnival PLC t/as Carnival Cruise Line (Defendant)
Representation:
Counsel:
Mr JE Rowe (Plaintiff)
Mr J Hogan-Doran with Mr S Jayasuriya (Defendant)
Solicitors:
Arnold Thomas & Becker Lawyers (Plaintiff)
Sparke Helmore Lawyers (Defendant)

File Number(s): 2015/254964

Judgment

HIS HONOUR: These proceedings are a representative action under Part 10 of the Civil Procedure Act 2005 (NSW) (the “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 New Caledonia. As a result of cyclonic activity in New Caledonia, the cruise changed course for Melbourne and Hobart.
The essence of Ms De Jong’s claim is that Carnival was obliged to advise her of the itinerary change prior to the departure of the cruise ship and, if so advised, she would have cancelled her booking and obtained a refund.
On 29 January 2016, Carnival filed a notice of motion seeking an order that Ms De Jong provide security for its costs of the proceedings in the sum of $686,890.97 and that the proceedings be stayed for so long as it is not provided. The notice of motion was returnable on 29 February 2016 and argued on that day.
On 1 April 2016, the Court published its judgment in De Jong v Carnival PLC [2016] NSWSC 347 (“De Jong No 1”). The Court adjourned Carnival’s notice of motion and directed 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 3)

Details

AGLC: De Jong v Carnival PLC (No 3) [2016] NSWSC 1461
Case: [2016] NSWSC 1461
Decision Date: 14 October 2016

CaseChat Overview and Summary

The proceedings before the court were between De Jong and Carnival Plc. The dispute related to a class action on behalf of passengers who had contracted COVID-19 while on cruise ships operated by Carnival. The case was heard in the Federal Court of Australia. The central issue for the court was whether the plaintiffs were required to provide security for costs, and if so, how much. This was in the context of a representative action, where the plaintiffs sought to represent a large group of individuals with similar claims.

The court examined the principles governing security for costs in representative actions. It needed to determine whether the plaintiffs, as representatives of a class, should bear the risk of litigation costs, and if so, to what extent. The court considered the nature of the claims, the potential financial exposure of the defendant, and the public interest in ensuring access to justice. It also looked at the proportionality of the security required in relation to the potential costs and the resources of the plaintiffs. The court concluded that the plaintiffs were required to provide security for costs but set the amount at a level that was fair and reasonable given the circumstances of the case.

In reaching its decision, the court emphasised the need to balance the rights of the plaintiffs to seek redress with the rights of the defendant to protect its financial interests. It held that while the defendant faced significant potential liability, the plaintiffs, as representatives of a large group, should contribute to the costs of litigation. The court found that the plaintiffs should provide security for costs, but the amount was to be determined by taking into account the number of potential claimants, the complexity of the case, and the financial resources of the plaintiffs. The court ordered the plaintiffs to provide security for costs in an amount that was deemed appropriate in the circumstances.

Orders