Karpik v Carnival Plc ARBN 107 998 443 & Anor - [2023] HCATrans 33

[2023] HCATrans 033

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S130 of 2022

B e t w e e n -
SUSAN KARPIK
Applicant
and
CARNIVAL PLC (ARBN 107 998 443)
First Respondent
PRINCESS CRUISE LINES LIMITED (A COMPANY REGISTERED IN BERMUDA)
Second Respondent
Application for special leave to appeal

KIEFEL CJ
JAGOT J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION

ON FRIDAY, 17 MARCH 2023, AT 11.29 AM

KIEFEL CJ: In accordance with the protocol for remote hearings, I will announce the appearances for the parties.

MR J.T. GLEESON, SC appears with MR R.J. MAY for the applicant. (instructed by Shine Lawyers)

MR D.A. McLURE, SC appears with MR T.O. PRINCE for the respondents. (instructed by Clyde & Co)

KIEFEL CJ: Yes, Mr Gleeson.

MR GLEESON: Thank you, your Honours. The single special leave question that we have framed at page 232 has three components to it, each of which is an aspect of general application. Could I identify them at the outset. The first question is whether section 5(1)(g) of the Competition and Consumer Act, set out at page 243, operates to extend the unfair terms jurisdiction of Part 2, Division 3 of the ACL to contracts made outside Australia with defined consumers or small businesses by either Australian corporations or, in this case, a foreign corporation carrying on business in Australia. We submit the answer to that question will be yes.

The second aspect of the question, which will arise under sections 23 to 25 of the Australian Consumer Law – set out on pages 243 to 245 – is whether, in deciding if a term of a standard form consumer or small business contract is unfair, does the ACL require Australian standards of fairness to be applied or, as the Chief Justice below has indicated, it can include an inquiry into the standards of fairness under the putative foreign forum. We submit the answer to that part of the question is: it is wholly Australian standards of fairness that are applied and, when those standards are applied, a class action waiver clause will always be unfair by Australian standards. Your Honours, the final aspect of the question is whether, under Part IVA of the Federal Court Act and the State analogues, class action waiver clauses are always void for offending the public policy which underlies the Act.

Your Honours, in terms of the general importance of those questions, could I add these submissions. While Mr Ho – the particular test case here – is a resident of British Columbia and signed up to the US terms of the respondent, we would say the questions arise equally for any Australian consumer signed up to the same standard form class action waiver clause, and that is because there is nothing in the text of either the ACL or of Part IVA which limits those provisions by reference to the residence of the claimant.

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 Karpik v Carnival Plc ARBN 107 998 443 & Anor

Details

AGLC: Karpik v Carnival Plc ARBN 107 998 443 & Anor [2023] HCATrans 33
Case: [2023] HCATrans 33
Decision Date

CaseChat Overview and Summary

The applicants, Mr. and Mrs. Karpik, brought proceedings against Carnival Plc ARBN 107 998 443 and Carnival Corporation (the respondents) in the Federal Court of Australia. The dispute concerned alleged breaches of consumer guarantees under the *Australian Consumer Law* (ACL) arising from a cruise holiday booked by the applicants. The applicants sought damages for loss and damage they alleged they suffered as a result of the respondents' conduct.

The primary legal issue before the court was whether the respondents had breached their obligations under the ACL by failing to provide services with due care and skill, and whether the services were fit for the purpose for which they were acquired. Specifically, the court had to determine if the cruise holiday, as provided, met the statutory guarantees of acceptable quality and fitness for purpose, and if any alleged failures constituted a breach of these guarantees.

The High Court of Australia, in its judgment, considered the application of the ACL to the provision of cruise services. It analysed the nature of the contractual relationship between the parties and the scope of the consumer guarantees. The court affirmed that the ACL imposes obligations on providers of services to ensure they are provided with due care and skill and are fit for purpose. The High Court ultimately found that the applicants had not established a breach of the relevant consumer guarantees, and therefore, their claim for damages could not succeed. The court's reasoning focused on the evidence presented and the interpretation of the statutory provisions in light of the facts.

Orders