Karpik v Carnival plc (The Ruby Princess) (Amendment Application)

The case of Karpik v Carnival plc (The Ruby Princess) (Amendment Application) involved an application to amend the defence at the commencement of the trial. The applicant, Karpik, sought to introduce new issues in her defence, namely sections 61(3) and 267(1)(c) of the Australian Consumer Law. The respondents, Carnival plc, opposed the application on the grounds that it was an abuse of process, that the proposed amendments were bad in law, and that it would result in a lengthy adjournment. The court had to decide whether the onus of proof on the issues sought to be introduced by the proposed pleading lay with the applicant or the respondents, and whether the proposed amendments were responsive to the applicant’s pleading.

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.