HIGH COURT OF AUSTRALIA
GAGELER CJ,
GORDON, EDELMAN, GLEESON AND JAGOT JJSUSAN KARPIK APPELLANT
AND
CARNIVAL PLC & ANOR RESPONDENTS
Karpik v Carnival plc
[2023] HCA 39
Date of Hearing: 3 & 4 August 2023
Date of Judgment: 6 December 2023
S25/2023
ORDER
1.Appeal allowed with costs.
2.Set aside paragraphs 2(b), 3 and 4 of the orders made by the Full Court of the Federal Court of Australia on 2 September 2022 and, in their place, order that the respondents pay the appellant's costs of the appeal.
On appeal from the Federal Court of Australia
Representation
J T Gleeson SC with R J May for the appellant (instructed by Shine Lawyers)
N C Hutley SC with T E O'Brien and J K Kennedy for the respondents (instructed by Clyde & Co)
S P Donaghue KC, Solicitor-General of the Commonwealth, and R C A Higgins SC with S Zeleznikow and S N Rajanayagam for the Attorney-General of the Commonwealth and the Australian Competition and Consumer Commission, intervening (instructed by Australian Government Solicitor)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Karpik v Carnival plc
Trade practices – Consumer protection – Extraterritorial application of s 23 of Australian Consumer Law ("ACL") – Where company carrying on business in Australia selling and marketing cruises – Where contract of passage made outside Australia – Where contract was contract of adhesion incorporating set terms and conditions – Where terms and conditions included exclusive jurisdiction clause and class action waiver clause – Whether s 5(1)(g) of Competition and Consumer Act 2010 (Cth) extended application of s 23 of ACL to contract – Whether any additional territorial connection required – Whether class action waiver clause constituted unfair term under s 23 of ACL and void.
Representative actions – Whether class action waiver clause contrary to Pt IVA of Federal Court of Australia Act 1976 (Cth) – Whether class action waiver clause unenforceable.
Private international law – Forum – Exclusive jurisdiction clause – Whether strong reasons not to grant stay of proceedings.
Words and phrases – "carrying on business", "consumer contract", "detriment", "engaging in conduct", "exclusive jurisdiction clause", "extraterritoriality", "inappropriate forum", "legitimate interests", "representative proceedings", "significant imbalance", "standard form contract", "stay of claim", "transparent", "unfair".
Competition and Consumer Act 2010 (Cth), s 5(1)(c) and (g).
Competition and Consumer Act 2010 (Cth), Sch 2 (Australian Consumer Law), s 23.
Federal Court of Australia Act 1976 (Cth), Pt IVA, ss 33J, 33X, 33Y.
GAGELER CJ, GORDON, EDELMAN, GLEESON AND JAGOT JJ. On 8 March 2020, the passenger ship Ruby Princess departed Sydney with some 2,600 passengers on board. During the voyage, there was an outbreak of COVID‑19. The voyage was cut short and the ship returned to Sydney, arriving on 19 March 2020. A number of passengers contracted COVID-19 and some of those passengers died. The appellant, Ms Karpik, was a passenger on the voyage.
By way of representative proceedings…
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- AGLC
- Karpik v Carnival plc [2023] HCA 39
- Case
- [2023] HCA 39
- Decision Date
CaseChat Overview and Summary
The High Court of Australia was required to determine several key legal issues. These included whether section 23 of the ACL, which renders unfair terms in consumer contracts void, applied extraterritorially to a contract made outside Australia, given that the company carried on business in Australia. The Court also had to consider whether section 5(1)(g) of the *Competition and Consumer Act 2010* (Cth) extended the application of section 23 of the ACL to such a contract, and if any additional territorial connection was necessary. Furthermore, the Court had to determine whether the class action waiver clause was an unfair term under section 23 of the ACL and therefore void, and whether it was contrary to Part IVA of the *Federal Court of Australia Act 1976* (Cth) and thus unenforceable. The Court also considered whether to grant a stay of proceedings based on the exclusive jurisdiction clause.
The High Court allowed the appeal, setting aside parts of the orders made by the Full Court of the Federal Court. The Court reasoned that section 5(1)(g) of the *Competition and Consumer Act 2010* (Cth) was sufficient to extend the application of section 23 of the ACL to the contract in question, even though it was made outside Australia. The Court found that the class action waiver clause was an unfair term under section 23 of the ACL and was void. The Court also determined that the clause was unenforceable as it was contrary to the legislative intent of Part IVA of the *Federal Court of Australia Act 1976* (Cth) regarding representative proceedings. Consequently, the Court found strong reasons not to grant a stay of proceedings.
The appeal was allowed with costs. The orders of the Full Court of the Federal Court were set aside, and the respondents were ordered to pay the appellant's costs of the appeal.
Orders
Orders of the court
1. Appeal allowed with costs.
2. Set aside paragraphs 2(b), 3 and 4 of the orders made by the Full Court of the Federal Court of Australia on 2 September 2022 and, in their place, order that the respondents pay the appellant's costs of the appeal.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by:
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