FEDERAL COURT OF AUSTRALIA
Karpik v Carnival plc (The Ruby Princess) (Amendment Application) [2022] FCA 1232
File number(s): NSD 806 of 2020 Judgment of: STEWART J Date of judgment: 14 October 2022 Catchwords: PRACTICE AND PROCEDURE – application to amend defence at the commencement of the trial – whether onus of proof on issues sought to be introduced by the proposed pleading, namely ss 61(3) and 267(1)(c) of the Australian Consumer Law, lie with applicant or respondents – where proposed amendments had not hitherto been part of the issues in the case – where grant of leave would result in a lengthy adjournment – where some of the proposed amendments are bad in law and unresponsive to the applicant’s pleading Legislation: Competition and Consumer Act 2010 (Cth) Sch 2 (Australian Consumer Law) ss 61(3), 267(1)(c)
Federal Court of Australia Act 1976 (Cth) s 37M
Federal Court Rules 2011 (Cth) r 16.02(1)(e)
Sale of Goods Act 1895 (SA) (repealed) s 14
Sale of Goods Act 1893 (UK) (repealed) s 14
Sale of Goods Act 1979 (UK) s 14
Cases cited: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175
Capic v Ford Motor Company of Australia Pty Ltd [2021] FCA 715; 154 ACSR 235
Central Regional Council v Uponor Ltd 1996 SLT 645
Dye v Commonwealth Securities Ltd (No 2) [2010] FCAFC 118
Effem Foods Ltd v Nicholls [2004] NSWCA 332; ATPR 42-034
Gill v Ethicon Sàrl (No 5) [2019] FCA 1905
Grant v Australian Knitting Mills Ltd [1936] AC 85
Kaplan v Victoria (No 2) [2022] FCA 679
Moore v Scenic Tours Pty Ltd (No 2) [2017] NSWSC 733
Rasell v Cavalier Marketing (Australia) Pty Ltd [1991] 2 Qd R 323
Scenic Tours Pty Ltd v Moore [2018] NSWCA 238; 361 ALR 456
Thomson v STX Pan Ocean Co Ltd [2012] FCAFC 15
Wade v J Daniels and Associates Pty Ltd [2020] FCA 1708
Miller’s Australian Competition and Consumer Law Annotated (44th ed, Lawbook Co, 2022)
Division: General Division Registry: New South Wales National Practice Area: Other Federal Jurisdiction Number of paragraphs: 41 Date of hearing: 13 October 2022 Counsel for the Applicant: I R Pike SC, A Naylor and R J May Solicitor for the Applicant: Shine Lawyers Counsel for the Respondents: D McLure SC, G O’Mahoney, H Pintos-Lopez, T March and A Reid Solicitor for the Respondents: Clyde & Co ORDERS
NSD 806 of 2020 BETWEEN: SUSAN KARPIK
Applicant
AND: CARNIVAL PLC (ARBN 107 998 443 / ABN 23107998443)
First Respondent
PRINCESS CRUISE LINES LTD (A COMPANY REGISTERED IN BERMUDA)
Second Respondent
ORDER MADE BY:
STEWART J
DATE OF ORDER:
14 OCTOBER 2022
THE COURT ORDERS THAT:
1.The respondents have leave to amend paragraph 176 of their defence by pleading that any failure to comply with the guarantees as alleged occurred…
Continue reading Karpik v Carnival plc (The Ruby Princess) (Amendment Applica...
Sign in free to access the full text
- AGLC
- Karpik v Carnival plc (The Ruby Princess) (Amendment Application) [2022] FCA 1232
- Case
- [2022] FCA 1232
- Decision Date
CaseChat Overview and Summary
The court found that the applicant had not discharged the onus of proof on the issues sought to be introduced by the proposed pleading. Further, the proposed amendments had not hitherto been part of the issues in the case, and the grant of leave would result in a lengthy adjournment. The court also found that some of the proposed amendments were bad in law and unresponsive to the applicant’s pleading. The court noted that the applicant’s reliance on the respondents’ skill and judgment was not properly in issue in the proceeding and had not been the subject of investigation and evidence. The court also found that the respondents had not pleaded the respects in which it was said that any reliance by the applicant on their skill and judgment was unreasonable.
The court exercised its discretion to disallow all of the proposed amendments save for that in respect of paragraph 176(b)(ii). The court ordered that the respondents have leave to amend paragraph 176 of their defence by pleading that any failure to comply with the guarantees as alleged occurred only because of the act of the Australian government on 15 March 2020 to close the borders to any cruise ships that are not already en route to Australia. The court also ordered that the respondents forthwith file an amended defence in accordance with the order and make the necessary arrangements for the updating of the court book. The applicant was given leave to file any reply to the amended defence as soon as possible, and the respondents’ interlocutory application to amend the defence was dismissed with costs.
Orders
Orders of the court
1. The respondents have leave to amend paragraph 176 of their defence by pleading that any failure to comply with the guarantees as alleged occurred only because of the act of the Australian government on 15 March 2020 to close the borders to any cruise ships that are not already en route to Australia.
2. The respondents forthwith file an amended defence in accordance with order 1 and make the necessary arrangements for the updating of the court book.
3. The applicant have leave to file any reply to the amended defence as soon as possible.
4. The respondents’ interlocutory application to amend the defence be otherwise dismissed with costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Further, it is common ground, as I understand it, that the services upon which the applicant relies ended when she disembarked from the vessel. The fact that the consequences of the failure of those services are said to extend beyond that point, does not mean that the matters that caused any failure of the services extended beyond that point.Discretionary considerations As mentioned, this matter was listed for trial more than a year ago. To allow the amendments that I have indicated that I will disallow would put undue burden on the applicant and create prejudice for her in the conduct of her case. Insofar as the amendment to paragraph 175 of the defence is concerned, I am not satisfied that the question of the applicant’s reliance on the respondents’ skill and judgment, as opposed to on its representations, is already properly in issue in the proceeding and has been the subject of investigation and evidence. The reliance that she has pleaded, and is required to prove, in her ACL s 18 claim is quite different from the reliance on the skill and judgment of the respondents as suppliers of services in respect of the purpose and result guarantees. Allowing paragraph 175, and paragraph 176(a)(i) and (b)(i) as explained, would therefore likely cause a disruption of the orderly conduct of the trial, including an adjournment that would be prejudicial to the administration of justice and other litigants in the Court. I also accept the applicant’s submission, with reference to Kaplan v Victoria (No 2) [2022] FCA 679 at [19] per Mortimer J, that “[t]he Court should only permit a very late amendment invoking an exception such as this when there is an adequately and full-expressed proposed pleading.” The respondents have not pleaded the respects in which it is said that any reliance by the applicant on their skill and judgment was unreasonable. In relation to the proposed paragraph 176(a), the respondents have not identified what act, default or omission of, or a representation made by, any person other than the supplier, or an agent or employee of the supplier, or what cause independent of human control that occurred after the services were supplied, was the only cause of any failure to comply with the guarantees.Disposition In all the circumstances, and taking into account the Aon factors, in the exercise of the Court’s discretion, I disallow all of the proposed amendments save for that in respect of paragraph 176(b)(ii). The Court orders that:(1)The respondents have leave to amend paragraph 176 of their defence by pleading that any failure to comply with the guarantees as alleged occurred only because of the act of the Australian government on 15 March 2020 to close the borders to any cruise ships that are not already en route to Australia.(2)The respondents forthwith file an amended defence in accordance with order 1 and make the necessary arrangements for the updating of the court book.(3)The applicant have leave to file any reply to the amended defence as soon as possible.(4)The respondents’ interlocutory application to amend the defence be otherwise dismissed with costs.