Karpik v Carnival plc (The Ruby Princess) (Stay Application) - [2021] FCA 1082

FEDERAL COURT OF AUSTRALIA
Karpik v Carnival plc (The Ruby Princess) (Stay Application) [2021] FCA 1082

File number: NSD 806 of 2020

Judgment of: STEWART J

Date of judgment: 10 September 2021

Catchwords:
PRIVATE INTERNATIONAL LAW – application for stay of sub-group members’ claims in representative proceeding alleging contraventions of Australian Consumer Law (ACL) ss 18, 29, 60 and 61 – where exclusive jurisdiction clause requires claims to be brought in the US District Courts for the Central District of California in Los Angeles – whether there are “strong reasons” to refuse the grant of stay – where proceedings commenced as a representative proceeding under Pt IVA of the Federal Court of Australia Act 1976 (FCA Act) – where not all members of class subject to exclusive jurisdiction clause – where clause appears in consumer contract of adhesion – whether US District Courts have and would exercise jurisdiction over ACL claims – if the exclusive jurisdiction clause does not apply, whether the Federal Court is a clearly inappropriate forum

CONTRACTS – incorporation of terms – whether carrier’s terms and conditions were incorporated into contract of carriage – where link provided in booking email to webpage that displayed multiple different sets of terms – where booking email received over one month after booking was concluded – whether there was reasonable notice of unusual terms

CONSUMER LAW – unfair terms – whether exclusive jurisdiction clause and class action waiver clause in a consumer contract of adhesion are unfair terms – whether reliance on class action waiver clause is unconscionable

PRACTICE AND PROCEDURE – representative proceedings – application for stay of proceedings on basis of class action waiver clause – whether unenforceable by reason of being contrary to Pt IVA of the FCA Act – consideration of whether a stay would be an appropriate remedy

PRACTICE AND PROCEDURE – representative proceedings – whether interlocutory application raises common questions

SHIPPING AND NAVIGATION – consideration of applicable law for torts occurring on the high seas

STATUTORY INTERPRETATION – whether s 138 of the Competition and Consumer Act 2010 (Cth) requires the Federal Court to exercise jurisdiction properly invoked in respect of ACL claims

Legislation:
Carriage of Goods by Sea Act 1991 (Cth) ss 8, 11, 20, Sch 1A Art 3 r 8

Competition and Consumer Act 2010 (Cth) Pt IV, ss 4, 5, 86, 138, 138A, 138B, 138E ; Sch 2 (Australian Consumer Law) ss 18, 21, 23, 24, 25, 29, 60, 61, 67, 236, 237

Corporations Act 2001 (Cth) ss 58AA, 232, 233, 1317H

Evidence Act 1995 (Cth) s 75

Federal Court of Australia Act 1976 (Cth) ss 23, 33C, 33E, 33H, 33J, 33K, 33L, 33M, 33N, 33P, 33Q, 33R, 33S, 33ZB, 33ZF, Pt IVA

Federal Court Rules 2011 (Cth) rr 9.34, 30.01

Insurance Contracts Act 1984 (Cth) ss 8, 52, 54

Sea-Carriage of Goods Act 1924 (Cth) (repealed) s 9(2)

Trade Practices Act 1974 (Cth) (repealed) ss 51AC, 52, 67, 68, 86, 87

Trans-Tasman Proceedings Act 2010 (Cth) s 19

Contracts Review Act 1980 (NSW) ss 7, 17

Fair Trading Act 1987 (NSW) Pts 3, 6A

Supreme Court Act 1986 (Vic) s 33KA

Package Travel and Linked Travel Arrangements Regulations 2018 (UK)

United States Code, Title 28 §§1333, 1367

Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, 1974 done at Athens on 13 December 1974, as amended by the Protocol amending it done at London on 1 November 2002

International Convention for the Unification of Certain Rules of Law relating to Bills of Lading done at Brussels on 25 August 1924 and the Protocol amending it done at Brussels on 23 February 1968

Cases cited:
A Nelson & Co Ltd v Martin & Pleasance Pty Ltd (Stay Application) [2021] FCA 754
ACCC v Chrisco Hampers Australia Ltd [2015] FCA 1204; 239 FCR 33
ACCC v CLA Trading Pty Ltd [2016] FCA 377; ATPR 42‑517
ACCC v Valve Corp (No 3) [2016] FCA 196; 337 ALR 647
Agro Co of Canada Ltd v The Ship “Regal Scout” (1983) 148 DLR (3d) 412
Akai Pty Ltd v People’s Insurance Co Ltd (1995) 126 FLR 204 at 227; 8 ANZ Ins Cas 61-254
Akai Pty Ltd v The People’s Insurance Co Ltd [1996] HCA 39; 188 CLR 418
Amaca Pty Ltd v Frost[2006] NSWCA 173; 67 NSWLR 635
Archer v Carnival Corporation and PLC WL 6260003 (CD Cal, 2020)
Asirifi-Otchere v Swann Insurance (Aust) Pty Ltd (No 2) [2020] FCA 1355; 148 ACSR 14
AT&T Mobility LLC v Concepcion 563 US 333 (2011)
Australia Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd [2018] NSWSC 1236
Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd [2019] NSWCA 61; 99 NSWLR 419
Bahrampour v Lambert 356 F 3d 969 (9th Cir 2004)
Baltic Shipping Co v Dillon (The Mikhail Lermontov) (1991) 22 NSWLR 1
BMW Australia Ltd v Brewster [2019] HCA 45; 374 ALR 627
Bonython v Commonwealth [1950] UKPCHCA 3; 81 CLR 486
Bray v F Hoffman-La Roche Ltd [2002] FCA 243; 118 FCR 1
The Bremen v Zapata Off-Shore Co 407 US 1 (1972)
Burke v LFOT Pty Ltd [2002] HCA 17; 209 CLR 282
BVT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 222; 385 ALR 286
Carnegie-Mellon University v Cohill, Judge, United States District Court for the Western District of Pennsylvania 484 US 343 (1988)
Carnival Cruise Lines, Inc v Shute 499 US 585 (1991)
Carter v Rent-A-Center, Inc 718 F App 502 (9th Cir, 2017)
Clarke Equipment Australia Ltd v Covcat Pty Ltd [1987] FCA 96; 71 ALR 367
Commonwealth Bank of Australia v White [1999] VSC 262; [1999] 2 VR 681
Compagnie des Messageries Maritimes v Wilson [1954] HCA 62; 94 CLR 577
Crabtree-Vickers Pty Ltd v Australian Direct Mail Advertising & Addressing Company Pty Ltd [1975] HCA 49; 133 CLR 72
CSR Ltd v Cigna Insurance Australia Ltd [1997] HCA 33; 189 CLR 345
DA Technology Australia Pty Ltd v Discrete Logic Inc [1994] FCA 101
DA Technology Australia Pty Ltd v Discreet Logic Inc (1994) 28 IPR 578
Deiro v American Airlines, Inc 816 F 2d 1360 (9th Cir, 1987)
DeLuca v Royal Caribbean Cruises, Ltd 244 F Supp 3d 1342 (SD Fla, 2017)
Dialogue Consulting Pty Ltd v Instagram, Inc [2020] FCA 1846
Dillon v RBS Group (Australia) Pty Ltd [2017] FCA 896; 252 FCR 150
Re Douglas Webber Events Pty Ltd [2014] NSWSC 1544; 291 FLR 173
Douez v Facebook Inc 2017 SCC 33; [2017] 1 SCR 751
Dyzcynski v Gibson [2020] FCA 120; 381 ALR 1
East Asia Company Ltd v PT Satria Tirtatama Energindo (Bermuda) [2019] UKPC 30; [2020] 2 All ER 294
eBay International AG v Creative Festival Entertainment Pty Ltd [2006] FCA 1768; 170 FCR 450
The Eleftheria [1970] P 94
Epic Games, Inc v Apple Inc (Stay Application) [2021] FCA 338
Epic Games, Inc v Apple Inc [2021] FCAFC 122
Ethicon Sàrl v Gill [2018] FCAFC 137; 264 FCR 394
Executive Software North America, Inc v United States District Court for Central District of California 24 F 3d 1545 (9th Cir 1994)
Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89
Faxtech Pty Ltd v ITL Optronics Ltd [2011] FCA 1320
The Fehmarn [1958] 1 WLR 159
Global Partners Fund Ltd v Babcock & Brown Ltd (in liq) [2010] NSWCA 196; 79 ACSR 383
Gonzalez v Agoda Co Pte Ltd [2017] NSWSC 1133
Henderson v Henderson (1843) 3 Hare 100; 67 ER 313
Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd [1988] FCA 42; 39 FCR 546
Henry v Henry [1996] HCA 51; 185 CLR 571
Hicks v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 757
The Hollandia [1983] 1 AC 565
Hollingworth v Southern Ferries Ltd (The Eagle) [1977] 2 Lloyd’s Rep 70
Home Ice Cream Pty Ltd v McNabb Technologies LLC [2018] FCA 1033
Home Ice Cream Pty Ltd v McNabb Technologies LLC (No 2) [2018] FCA 1093
Hope v Bathurst City Council [1980] HCA 16; 144 CLR 1
Huddart Parker Ltd v The Ship “Mill Hill” [1950] HCA 43; 81 CLR 502
Incitec Ltd v Alkimos Shipping Corporation [2004] FCA 698; 138 FCR 496
Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd [1989] QB 433
Jetstar Airways Pty Ltd v Free [2008] VSC 539
John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; 203 CLR 503
Liberty Mutual Insurance Company v Icon Co (NSW) Pty Ltd [2021] FCAFC 126
Mobil Oil Australia Pty Ltd v Victoria [2002] HCA 27; 211 CLR 1
Nicola v Ideal Image Development Corporation Inc [2009] FCA 1177; 215 FCR 76
Oltman v Holland America Line, Inc 538 F 3d 1271 (9th Cir, 2008)
Perera v GetSwift Ltd [2018] FCAFC 202; 263 FCR 92
Pompey Industrie v ECU-Line NV 2003 SCC 27; [2003] 1 SCR 450
Price v Spoor [2021] HCA 20
Public Service Association of South Australia v Federated Clerks’ Union of Australia [1991] HCA 33; 173 CLR 132
Puttick v Tenon [2008] HCA 54; 238 CLR 265
Quinlan v Safe International Försäkrings AB [2005] FCA 1362
P Dawson Nominees Pty Ltd v Brookfield Multiplex Ltd (No 2) [2010] FCA 176
Pioneer Concrete Services Ltd v Galli [1985] VR 675
Regie Nationale des Usines Renault SA v Zhang [2002] HCA 10; 210 CLR 491
Royal Caribbean Cruises Ltd v Browitt [2021] FCA 653
Smith, Valentino & Smith, Inc v Superior Court of Los Angeles County 17 Cal 3d 491 (1976)
Société Nationale Industrielle Aerospatiale v Lee Kui Jak [1987] AC 871
Sohio Supply Co v Gatoil (USA) Inc [1989] 1 Lloyd’s Rep 588
Spiliada Maritime Corporation v Cansulex Ltd [1987] 1 AC 460
Thiel v Federal Commissioner of Taxation [1990] HCA 37; 171 CLR 338
Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163
Timbercorp Finance Pty Ltd (in liq) v Collins [2016] HCA 44; 259 CLR 212
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; 219 CLR 165
Trina Solar (US), Inc v Jasmin Solar Pty Ltd [2017] FCAFC 6; 247 FCR 1
Oceanic Sun Line Special Shipping Co Inc v Fay [1988] HCA 32; 165 CLR 197
Uber Technologies Inc v Heller 2020 SCC 16
Valve Corporation v ACCC [2017] FCAFC 224; 258 FCR 190
Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538
Wallis v Princess Cruises, Inc 306 F 3d 827 (9th Cir, 2002)
Westfield Management Ltd v AMP Capital Property Nominees Ltd [2012] HCA 54; 247 CLR 129
Australian Law Reform Commission, Grouped Proceedings in the Federal Court (Report No 46, 1988)
Davies M, Bell AS, Brereton PLG and Douglas M, Nygh’s Conflict of Laws in Australia (10th ed, LexisNexis Butterworths, 2020)

Division: General Division

Registry: New South Wales

National Practice Area: Other Federal Jurisdiction

Number of paragraphs: 374

Date of last submission/s: 13 July 2021

Date of hearing: 1-2, 9 July 2021

Counsel for the Applicant: I Pike SC, R May and D Farinha

Solicitor for the Applicant: Shine Lawyers Pty Ltd

Counsel for the Respondents: D McLure SC, G O’Mahoney, A Reid and H Cooper (written submissions also by T Prince)

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:

10 SEPTEMBER 2021

THE COURT ORDERS THAT:
1.The parties liaise with the associate to Stewart J to arrange a date for a hearing to consider the form of orders to be made on the respondents’ amended interlocutory application filed on 28 June 2021 to reflect the reasons for judgment published today.
2.The parties confer with a view to agreeing the form of orders to be considered by the Court at the hearing referred to in Order 1.
3.Failing agreement as referred to in Order 2, at least two full days before the hearing referred to in Order 1 the parties file and serve the form of orders they each contend for and written submissions (of no more than three pages) in support of such orders.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

A.         INTRODUCTION

[1]

B.          THE PRESENT INTERLOCUTORY APPLICATION

[17]

C.         INCORPORATION OF THE RELEVANT CLAUSES

[25]

C.1       The applicable principles

[31]

C.2       The Princess booking arrangements

[33]

C.3       Mr Ho’s contract

[41]

C.4       The Princess “Cruise Personalizer” webpage

[53]

C.5       Whose agent was the travel agent?

[61]

C.6       Analysis and conclusion

[68]

D.         IS INCORPORATION OF THE U.S. CLAUSES A COMMON QUESTION?

[90]

E.          ARE THE RELEVANT U.S. CLAUSES ENFORCEABLE?

[98]

E.1 Is the class action waiver clause contrary to Pt IVA of the FCA Act?

[102]

E.2        Are the clauses unfair under Pt 2-3 of the ACL?

[122]

E.2.1     The exclusive jurisdiction clause

[134]

E.2.2     The class action waiver clause

[138]

E.3        Is reliance on the class action waiver clause unconscionable?

[146]

E.4 Are the clauses unjust under s 7 of the CRA?

[155]

F.          THE BASES ON WHICH THE RESPONDENTS SEEK A STAY OF THE U.S. AND U.K. SUB-GROUPS’ CLAIMS

[159]

F.1        Introduction

[159]

F.2        Exclusive jurisdiction clause: applicable principles

[165]

F.2.1     The rule in Akai

[165]

F.2.2     The effect of Australian Health v Hive

[175]

F.3        Class action waiver clause

[195]

F.4        Clearly inappropriate forum

[196]

G.         IS A STAY PROHIBITED BY SECTION 138 OF THE COMPETITION AND CONSUMER ACT?

[208]

G.1       Introduction

[208]

G.2       Public Service Association (1991)

[220]

G.3       DA Technology (1994)

[223]

G.4       Akai (1996)

[226]

G.5       Nicola (2009)

[239]

G.6       Faxtech (2011)

[243]

G.7       Douglas Webber (2014)

[246]

G.8       Home Ice Cream (2018)

[251]

G.9       Epic v Apple (2021)

[261]

G.10     Analysis and conclusion

[270]

H.         APPLICABLE LAW FOR THE NEGLIGENCE CLAIMS

[278]

I.           CONSIDERATION OF A STAY IF THE RELEVANT U.S. CLAUSES WERE INCORPORATED AND ENFORCEABLE

[289]

I.1         The exclusive jurisdiction clause

[290]

I.1.1      Are the claims available in the US Court?

[291]

The experts

[291]

The choice of law mechanism

[297]

The jurisdiction of US federal courts

[299]

The same case or controversy (28 USC §1367(a))

[304]

Novel or complex issues of law (28 USC §1367(c)(1))

[308]

Substantially predominate over claims in the original jurisdiction (28 USC §1367(c)(2))

[316]

Compelling reasons for declining jurisdiction (28 USC §1367(c)(4))

[320]

Summary of conclusions on US law

[326]

I.1.2      Should the US sub-group claims be stayed on Akai grounds?

[331]

I.2         The class action waiver clause

[339]

J.          CLEARLY INAPPROPRIATE FORUM

[349]

J.1        The US sub-group

[353]

J.2        The UK sub-group

[360]

K.         DISPOSITION

[370]

STEWART J:
A.         INTRODUCTION

On 8 March 2020, at a time when the current COVID-19 global pandemic was at its relative infancy, the passenger ship Ruby Princess departed from Sydney on its ill-fated voyage RU2007 with some 2,600 passengers on board. During the voyage there was an outbreak of disease on board. After having visited a number of scheduled ports in New Zealand, the cruise was cut short and the ship returned to Sydney, arriving on 19 March 2020. A substantial number of passengers contracted the disease and some died.
By way of representative proceedings under Pt IVA of the Federal Court of Australia Act 1976 (Cth) (FCA Act), the applicant, Susan Karpik, asserts claims against Carnival plc, the first respondent and time charterer of the vessel, and Princess Cruise Lines Ltd, the second respondent and owner and operator of the vessel. Mrs Karpik and her husband were passengers on the voyage. Mrs Karpik says that she and her husband contracted COVID-19 on the voyage. Her husband, in particular, became gravely ill which resulted in him spending nearly two months in hospital including a long time in intensive care where he was ventilated, intubated and unconscious for about four weeks.
In summary, the group members in the proceeding are the following:
(1)Passenger Group Members who were passengers on board the vessel during the voyage;
(2)Executor Group Members who are the executors and administrators of the deceased estates of persons who contracted COVID-19 during or as a result of the voyage and subsequently died as a consequence; and
(3)Close Family Group Members who are the close family members or loved ones of a passenger who travelled on the voyage who suffered a recognised psychiatric injury, mental harm or nervous shock as a result of the passenger contracting COVID-19 during or as a result of the voyage and the passenger subsequently died or became severely ill.
The claims advanced on behalf of the group members in the proceeding are, first, claims at common law alleging the tort of negligence and, secondly, statutory claims under the Australian Consumer Law (ACL) (Competition and Consumer Act 2010 (Cth) (CCA), Sch 2).
The first tort claim alleges that the respondents breached their duties of care by allowing the voyage to proceed at all. The second tort claim alleges that the respondents breached their duties of care by failing to take adequate measures during the cruise to protect passengers from the risk of contracting COVID-19. The third tort claim alleges that the respondents breached their duties of care by failing to warn passengers of the risk of contracting COVID-19 and that adequate measures could or would not be implemented during the cruise to protect passengers from the risk of contracting COVID-19.
The first ACL claim alleges breaches of guarantees imposed by ACL ss 60 and 61. In reliance on ACL s 61(1), it is alleged that the respondents guaranteed that the services of supplying the voyage and necessary information about the voyage would be reasonably fit for the purpose of providing a safe, relaxing and pleasurable 13-day cruise holiday and to “come back new” from that holiday. In reliance on ACL s 61(2) it is alleged that the services supplied by the respondents were not of such a nature, quality, state or condition that they might reasonably be expected to achieve the result of passengers having a safe, relaxing and pleasurable cruise, and to “come back new”. “Come back new” is said to be a registered trademark of Princess and to have been used to advertise and promote the voyage. In reliance on ACL s 60 it is alleged that in supplying the services the respondents breached a guarantee that the services would be rendered with due care and skill.
The second ACL claim alleges false, misleading or deceptive conduct by the respondents contrary to ACL ss 18 and 29(1)(b). In that regard it is said that the respondents made a number of representations with respect to the voyage which were false, misleading or deceptive. Those representations are:
(1)a “safety representation”, namely that it was safe to board the vessel for the voyage;
(2)a “protection representation”, namely that the health of the passengers on the voyage would be adequately protected;
(3)a “best practices representation”, namely that the respondents had implemented adequate protocols to protect the health of their passengers that were designed to be flexible to adapt to changing conditions and recommended best practices; and
(4)a “pleasurable cruise representation”, namely that the passengers would have a relaxing, pleasurable and enjoyable time on the vessel and would come back feeling new.
As a result of the alleged breaches of the duties of care and the guarantees, and the false, misleading or deceptive representations, it is alleged that the applicant and group members have suffered various loss and damage. For the applicant, that includes non-economic loss damages for “distress and disappointment”. Although it is said that the loss and damages for other group members is still to be provided, on the applicant’s approach to the case all passengers would have claims for loss and disappointment. That means that on the face of it, the proceeding includes claims in respect of all the passengers on the voyage except those who commenced separate proceedings before the statement of claim was filed or who had died other than from COVID-19 acquired on the voyage.

Early in the case management of the proceeding, the respondents contended that all of the passengers on the voyage were subject to one or other of three different contractual terms and conditions that were said to apply to their bookings. The different terms and conditions are referred to as the US terms and conditions, UK terms and conditions and Australian terms and conditions; how those terms and conditions arose is dealt with below. In that regard, the respondents say that there were 2,651 people who travelled as revenue passengers on the voyage of whom:
(1)696 contracted on the US terms and conditions;
(2)159 contracted on the UK terms and conditions; and
(3)1,796 contracted on the Australian terms and conditions.
(There were apparently four additional revenue passengers who are recorded as having booked under agency base code “CN” meaning that the contract is said to have been on the US terms and conditions but in a Chinese language.)
As dealt with in more detail below, the US terms and conditions include an exclusive jurisdiction clause in favour of the United States District Courts for the Central District of California in Los Angeles (the US Court) and courts located in Los Angeles County or, failing that, an arbitration clause providing for arbitration under the United States Federal Arbitration Act, a choice of law clause applying the general maritime law of the United States or the laws of the State of California, and a class action waiver clause.
The UK terms and conditions include a non-exclusive jurisdiction clause in favour of English Courts and a choice of law clause applying EU Regulation 392/2009 on the Liability of Carriers of Passengers by Sea in the Event of Accidents and the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, 1974 done at Athens on 13 December 1974, as amended by the Protocol amending it done at London on 1 November 2002.
As a result of the respondents indicating during case management that they wished to rely on the US and UK terms and conditions in respect of the passengers whom they contend are subject to those terms and conditions, and to apply for the stay of the proceeding insofar as those passengers are concerned, orders were made requiring the representative proceeding groups to be further divided into appropriate sub-groups.
The applicant then filed points of claim for Patrick Ho as a US sub-group representative and Julia Wright as a UK sub-group representative. Mr Ho and Mrs Wright have not been formally appointed as sub-group representatives as envisaged by s 33Q(2) of the FCA Act. One of the issues that arises for consideration is whether they should be so appointed.
Mr Ho’s points of claim identify him as a sub-group representative of passenger group members “who the respondents allege” are party to a relevant passage contract with one or other of the respondents that contains the relevant clauses in the US terms and conditions. The reason why the sub-group is defined on the basis of who the respondents allege are subject to the US terms and conditions, rather than on the basis of passengers actually subject to such terms and conditions, is that Mr Ho denies that he is subject to those terms and the applicant’s solicitors say that they have not been able to find anyone who accepts that they are so subject. The respondents, on the other hand, identify 696 passengers whom they say are subject to the US terms and conditions.
Mrs Wright’s points of claim identify her as a sub-group representative of passenger group members who are also a party to a relevant passage contract with one or other of the respondents that contains the relevant clauses in the UK terms and conditions.
With that introduction, I can now turn to the specifics of the present interlocutory application.
B. THE PRESENT INTERLOCUTORY APPLICATION
By amended interlocutory application, the respondents seek an order pursuant to r 30.01 of the Federal Court Rules 2011 (Cth) or s 33ZF of the FCA Act that the following questions be heard and determined separately, and the determination of those questions:
US sub-group members
(a)Should the claims advanced by Patrick Ho be stayed on the grounds that:
(i)his claim is an abuse of process;
(ii) he is bound by an exclusive jurisdiction clause in favour of the United States District Courts for the Central District of California in Los Angeles and courts located in Los Angeles County, California;
(iii) this Court is a clearly inappropriate forum for the hearing and determination of his claims; and/or
(iv) a stay is otherwise in the interests of justice?
(b)Should the claims of the US sub-group members be stayed on the grounds that:
(i) their claims are an abuse of process;
(ii) they are bound by an exclusive jurisdiction clause in favour of the United States District Courts for the Central District of California in Los Angeles and courts located in Los Angeles County, California;
(iii) the Court is a clearly inappropriate forum for the hearing and determination of these claims; and/or
(iv) a stay is otherwise in the interests of justice?
(c)Should the Court’s judgment answering questions (a) and (b) above bind all US sub-group members save for those who have opted out of the proceedings under s 33J of the [FCA Act]?
(d) What is the system of law governing the claims in negligence brought by Patrick Ho?
(e) What is the system of law governing the claims in negligence brought on behalf of the of the US sub-group members?
UK sub-group members
(f)Should the claims advanced by Julia Wright be stayed on the grounds that:
(i)her claim is an abuse of process;
(ii)this Court is a clearly inappropriate forum for the hearing and determination of his claims; and/or
(iii) a stay is otherwise in the interests of justice?
(g)Should the claims advanced by the UK sub-group representative, on behalf of UK sub-group members, be stayed on the grounds that:
(i) the claims advanced on behalf of the UK sub-group members are an abuse of process;
(ii) the Court is a clearly inappropriate forum for the hearing and determination of these claims; and/or
(iii) a stay is otherwise in the interests of justice?
(h) Should the Court’s judgment answering questions (f) and (g) above bind all UK sub-group members save for those who have opted out of the proceedings under s 33J of the [FCA Act]?
(i) What is the system of law governing the claims in negligence brought by Julia Wright?
(j) What is the system of law governing the claims in negligence brought on behalf of the UK sub-group members?
The respondents also seek the following relief with regard to appointing Mr Ho and Mrs Wright as sub-group representatives:
2.An order pursuant to s 33Q(2) of the [FCA Act]:
(a)establishing a sub-group consisting of those Passenger Group Members who are party to a relevant passage contract with the first and/or second respondent that contains:
(i) a choice of law clause selecting the general maritime law of the United States or the laws of the State of California;
(ii) an exclusive jurisdiction clause selecting the courts of the United States or the State of California for claims of injury, illness or death;
(iii) an arbitration clause providing for arbitration pursuant to, inter alia, the United States Federal Arbitration Act, of all other claims; and
(iv) a class action waiver clause;
(US sub-group members)
(b)appointing Patrick Ho to be the sub-group representative party on behalf of the US sub-group members.
3.Further or alternatively, an order pursuant to r 9.05(1)(b)(ii) joining Patrick Ho as a party to the proceeding.
4.An order pursuant to s 33Q(2) of the [FCA Act]:
(a)establishing a sub-group consisting of those Passenger Group Members who are party to a relevant passage contract with the first and/or second respondent that contains:
(i)a choice of law clause selecting English law;
(ii) a non-exclusive jurisdiction clause selecting English courts; and
(iii) a clause providing for the application of the Athens Convention for liability for death or personal injury arising out of international carriage by sea;
(UK sub-group members)
(b)appointing Julia Wright to be the sub-group representative party on behalf of the UK sub-group members.
5. Further or alternatively, an order pursuant to r 9.05(1)(b)(ii) joining Julia Wright as a party to the proceeding.
6. An order staying the claims in the proceedings brought by Patrick Ho.
7. An order staying the claims in the proceedings brought by Julia Wright.
8. Costs
9. Such further or other orders as the Court thinks fit.
The applicant raises a number of contentions against the relief that the respondents seek. In particular, she denies that the clauses on which the respondents rely in respect of Mr Ho – namely, an exclusive jurisdiction clause and a class action waiver clause – are incorporated into his contract. The applicant also says that if either or both of these clauses are incorporated, they are void or otherwise unenforceable. The result is that the interlocutory application throws up the following additional issues for determination in order to decide on the relief sought by the respondents:
(1)Is Mr Ho’s claim subject to the US terms and conditions?
(2)Is it possible or appropriate to make any finding with regard to whether the rest of the US sub-group is subject to the US terms and conditions?
(3)If either Mr Ho’s claim or the rest of the US sub-group’s claims are subject to the US terms and conditions, is it possible or appropriate to make a finding with regard to the following questions and, if so, what finding should be made:
(a)Is the exclusive jurisdiction clause unenforceable on account of:
(i)ACL Pt 2-3, i.e., unfair contract terms; and/or
(ii)the Contracts Review Act 1980 (NSW) (CRA), i.e., unjust in the circumstances relating to the contract at the time that it was made?
(b)Is the class action waiver clause unenforceable on account of:
(i)ACL Pt 2-3, i.e., unfair contract terms;
(ii)the CRA, i.e., unjust in the circumstances relating to the contract at the time that it was made;
(iii)FCA Act Pt IVA, i.e., representative proceedings legislation being mandatory law of the forum; and/or
(iv)ACL s 21, i.e., unconscionable conduct?
(4)Is the Court prohibited from staying any of the claims on account of CCA s 138 having the effect that once jurisdiction under that section is invoked it cannot be declined?
For the reasons which follow, I have decided to refuse the respondents’ application for a stay in respect of the claims of Mr Ho, the US sub-group, Mrs Wright and the UK sub-group. In summary, the application in respect of Mr Ho fails because the US terms and conditions are not incorporated into his contract and the issue of incorporation is not appropriate for me to determine as a common question in respect of the remainder of the US sub-group. I have also determined that this Court is not a clearly inappropriate forum in which to determine the claims of the US and UK sub-groups.
I have also reached the conclusion that if the exclusive jurisdiction clause and the class action waiver clause were incorporated, except for one, the applicant’s challenges to the enforceability of the clauses fail. The exception is that in my view the class action waiver clause would be void as an unfair contract term under ACL s 23.
I have also decided that it is not possible or appropriate to decide at this stage what system of law governs the claims in negligence of the US and UK sub-group members.
One result of the conclusions I have reached as identified above, is that there is no issue identified by the respondents that I have decided to determine separately in the present application. I have therefore not had to deal with the complexities with regard to different requirements of proof that arises where, in one application, some matters are dealt with on an interlocutory basis and others on a final basis.
On whether Mr Ho and Mrs Wright should be appointed sub-group representatives and the other relief identified in [18] above, I will require further submissions from the parties based on the conclusions that I have otherwise reached as reflected in these reasons.
C. INCORPORATION OF THE RELEVANT CLAUSES
As previously mentioned, the relevant clauses that the respondents contend Mr Ho and the members of the US sub-group are subject to are an exclusive jurisdiction clause and a class action waiver clause, which are found in the US terms and conditions.
The exclusive jurisdiction clause is found at cl 15(B)(i) of the US terms and conditions and provides:
Claims for Injury, Illness or Death: All claims or disputes involving Emotional Harm, bodily injury, illness to or death of any Guest whatsoever, including without limitation those arising out of or relating to this Passage Contract or Your Cruise, shall be litigated before the United States District Courts for the Central District of California in Los Angeles, or as to those lawsuits over which the Federal Courts of the United States lack subject matter jurisdiction, before a court located in Los Angeles County, California, USA, to the exclusion of the courts of any other country, state, city, municipality, county or locale. You consent to jurisdiction and waive any objection that may be available to any such action being brought in such courts.
The class action waiver clause is found at cl 15(C) and provides:
WAIVER OF CLASS ACTION: THIS PASSAGE CONTRACT PROVIDES FOR THE EXCLUSIVE RESOLUTION OF DISPUTES THROUGH INDIVIDUAL LEGAL ACTION ON YOUR OWN BEHALF INSTEAD OF THROUGH ANY CLASS OR REPRESENTATIVE ACTION. EVEN IF THE APPLICABLE LAW PROVIDES OTHERWISE, YOU AGREE THAT ANY ARBITRATION OR LAWSUIT AGAINST CARRIER WHATSOEVER SHALL BE LITIGATED BY YOU INDIVIDUALLY AND NOT AS A MEMBER OF ANY CLASS OR AS PART OF A CLASS OR REPRESENTATIVE ACTION, AND YOU EXPRESSLY AGREE TO WAIVE ANY LAW ENTITLING YOU TO PARTICIPATE IN A CLASS ACTION. IF YOUR CLAIM IS SUBJECT TO ARBITRATION UNDER SECTION 15(B)(ii) ABOVE, THE ARBITRATOR SHALL HAVE NO AUTHORITY TO ARBITRATE CLAIMS ON A CLASS ACTION BASIS. YOU AGREE THAT THIS CLASS ACTION WAIVER SHALL NOT BE SEVERABLE UNDER ANY CIRCUMSTANCES FROM THE ARBITRATION CLAUSE SET FORTH IN SECTION 15(B)(ii) ABOVE, AND IF FOR ANY REASON THIS CLASS ACTION WAIVER IS UNENFORCEABLE AS TO ANY PARTICULAR CLAIM, THEN AND ONLY THEN SUCH CLAIM SHALL NOT BE SUBJECT TO ARBITRATION.
As will be seen, it is not contended that Mr Ho or any member of the US sub-group signed any contractual terms. The respondents principally rely on the various passengers having been given notice that particular terms and conditions apply to their booking. Cases in which such a method of incorporation of terms and conditions into a contract is employed are generally referred to as “ticket cases”. How it is said that Mr Ho was given notice is dealt with in sections C.2 – C.5 below.
In the case of Mrs Wright, it is common ground that her passage contract, and the passage contracts of the other members of the UK sub-group, contained the following clauses:
2The Contract shall be between Princess and the Passenger on the basis of these Conditions and the information contained in the brochure or website, and shall be governed by English law and the non-exclusive jurisdiction of the English courts.
…
51 International Carriage of Passengers and their luggage by sea, including the Cruise, is governed by EU Regulation 392/2009 on the Liability of Carriers of Passengers by Sea in the Event of Accidents … and the Athens Convention 2002 … The Athens Convention 2002 and EU Regulation 392/2009 are expressly incorporated into these Conditions and any liability of Princess for death or personal injury or for loss or damage to luggage arising out of international carriage by sea shall be solely brought and determined in accordance with the Athens Convention 2002 and EU Regulation 392/2009 which limit the carrier’s liability for death or personal injury or loss of or damage to luggage and make special provision for valuables. …
Given that there is no issue with regard to the incorporation of the UK terms and conditions in Mrs Wright’s contract, the remainder of this section of the judgment deals with whether the US terms and conditions were incorporated into Mr Ho’s passage contract. It is convenient to commence with the identification of the principles that apply to such cases.
C.1 The applicable principles
Having recently undertaken the task of identifying the principles applicable to incorporation of contractual terms in ticket cases in Royal Caribbean Cruises Ltd v Browitt [2021] FCA 653, and leaving aside the first circumstance dealt with there which is where there is a signed document, I can do no better than set out the principles that I identified on that occasion:
79 Dealing secondly with the case where the person who is sought to be held to a contractual term did not sign the contractual document, this being the so-called “ticket cases”, the issuer of the document cannot rely on the terms unless it gave reasonable notice to the other party that the document contains contractual terms. Notice involves notice that there is writing of a contractual nature and it is not necessary for the precise terms to be communicated. Also, if the document can reasonably be expected to contain contractual terms that is sufficient even if in the particular case the person sought to be held to those terms was not actually aware of them. See Parker v Eastern Railway Co (1877) 2 CPD 416 at 421-423; Hood v Anchor Line (Henderson Bros) Ltd [1918] AC 837 at 843 (Lord Finlay LC), 845 (Viscount Haldane) and 848-849 (Lord Parmoor); Sydney City Council v West [1965] HCA 68; 114 CLR 481 at 485-486 (Barwick CJ and Taylor J), 491-492 (Kitto J) and 503 (Windeyer J); MacRobertson Miller Airline Services v Commissioner of State Taxation (WA) [1975] HCA 55; 133 CLR 125 at 138 (Stephen J) and 143 (Jacobs J); Toll v Alphapharm [Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; 219 CLR 165] at [54].
80 In the case of unusual or onerous terms, the notice requirement is more exacting and will generally require that attention is drawn to the nature of the particular term in question. It was held in Oceanic Sun Line [Oceanic Sun Line Special Shipping Co Inc v Fay [1988] HCA 32; 165 CLR 197] by Brennan J (at 228-229) as ratio that where an exemption clause is contained in a ticket or other documents intended by the carrier to contain the terms of carriage, yet the other party is not in fact aware when the contract is made that an exemption clause is intended to be a term of the contract, the carrier cannot rely on that clause unless, at the time of the contract, the carrier had done all that was reasonably necessary to bring the exemption clause to the passenger’s notice.
81 In Toll v Alphapharm, with reference to that principle, it was said (at [53]-[54]) that there is no reason why it should apply only to exclusion clauses, that case being about an exclusion clause, and that the criterion by which a court might declare a contractual provision to be unusual or onerous is not always easy to identify. The principle applies to cases, such as ticket cases, in which one party has endeavoured to incorporate in a contract terms and conditions appearing in a notice or an unsigned document. That is when it is necessary that the party has done what is reasonably sufficient to give notice of such terms. See also Baltic Shipping Co v Dillon (The Mikhail Lermontov) (1991) 22 NSWLR 1 at 8 (Gleeson CJ) and 25 (Kirby P) (reversed on appeal but not on this point on which special leave to appeal had been granted but was rescinded, with Mason CJ for the Court stating that “there is no sufficient reason to doubt the correctness of the conclusion of the majority of the Court of Appeal on that point”: see “Damages for Disappointed Tourist: Applying the Contract Review Act” (1992) 13(2) Leg Rep 15; Baltic Shipping Co v Dillon [1993] HCA 4; 176 CLR 344 at 347); National Australia Bank Ltd v Dionys [2016] NSWCA 242 at [88]-[89] (Sackville AJA, with whom Macfarlan JA agreed) and [183]-[184] (White J).
82 Thirdly, where a party authorises an agent to contract on their behalf that party is bound by the terms on which the agent contracts: Toll v Alphapharm at [80]-[82].
(The bold typeface is added for shorthand reference in these reasons.)

To those principles can be added another, namely that once the contract is concluded it is too late to add terms and conditions to it by giving notice at some later stage of such terms and conditions that are said to apply to the contract: Oceanic Sun Line at 206-7 per Toohey and Wilson JJ, 228-9 per Brennan J (citing The Dragon [1979] 1 Lloyd’s Rep at 262), 256 per Deane J and 261 per Gaudron J; Baltic Shipping at 25B per Kirby P; Browitt at [54].
C.2 The Princess booking arrangements
During the period when the passengers made bookings for voyage RU2007, there were three ways by which bookings could be made. First, bookings could be made by prospective passengers directly by telephone by calling a contact centre operated by Princess. Secondly, bookings could be made by prospective passengers directly by them visiting the Princess website and making an online booking. Thirdly, prospective passengers could make bookings through travel agents.
When a booking was made through any one of those methods, a booking was created in Princess’s computer booking system known as “POLAR”.
Evidence was given of the process that was expected to be followed when bookings were sought to be made at one of Princess’s contact centres, of which there are 10 located in different cities around the world. That evidence included what the contact centre employees are expected to communicate to customers who wish to make bookings, but just what any particular customer was told or how their booking was handled is a matter of speculation. Nevertheless, the mechanics of the booking system itself can be taken as common across all prospective customers making bookings by calling a contact centre. As one would expect, the contact centre staff member is the interface between the customer and the POLAR booking system.
Similarly, when a customer seeks to make a booking through a travel agent, the travel agent is the interface between the customer and the POLAR booking system. Authorised travel agents have direct access to POLAR. The travel agent (or the contact centre employee) generates the booking on the system by inputting necessary personal details of the prospective passenger if they are not already there from a previous booking, selecting the voyage for which the booking is sought and selecting other options such as the cabin. One of the personal details that must be provided is the passenger’s country of residence.
A booking number is then generated. The system provides an option for paying the deposit at that time, or paying the deposit later in accordance with the terms of the relevant booking.
Upon the generation of the booking number, the POLAR system automatically generates a booking confirmation document and a corresponding booking confirmation email, which are in all relevant respects identical. The terms of the document and the terms of the email will depend upon the “agency base code” automatically assigned to the booking. In that regard, all bookings have agency base codes designating one of three possible geographic areas, namely:
(1)Australia and New Zealand, to which the Australian terms and conditions are said to automatically apply;
(2)Great Britain, to which the UK terms and conditions are said to automatically apply; and
(3)all other countries (i.e., excluding Australia, New Zealand and Great Britain) to which the US terms and conditions are said to automatically apply.
The particular agency base code assigned to a passenger’s booking depends on how the booking was made. If the prospective passenger made the booking through the Princess website, the agency base code would be determined by the designated location of the IP address of the device from which they made the booking or, if they had previously generated a princess.com login profile or account and had the status of being “authenticated” (i.e., they had logged in to their account on the princess.com website), then the country of residence that they had recorded in their profile would determine the agency base code.
If the booking was made by calling a contact centre operated by Princess, the agency base code would be determined with reference to the country in which the relevant contact centre is located. If the booking was made by a travel agent using the POLAR system, the agency base code would be determined with reference to the travel agent’s profile already recorded in POLAR.
C.3 Mr Ho’s contract
Mr Ho did not give evidence himself. Rather, his solicitor, Ms Antzoulatos, gave evidence on the basis of instructions given to her by Mr Ho. Initially this raised a question about the admissibility of that evidence in the interlocutory application because, on one view, the application seeks final relief in relation to Mr Ho even though it is interlocutory in form. On that view, s 75 of the Evidence Act 1995 (Cth) would not render the hearsay evidence admissible. The applicant, however, offered Mr Ho for cross-examination and, as I understand it, on that basis Ms Antzoulatos’s evidence of what Mr Ho told her was not objected to. Mr Ho was not cross-examined.
Mr Ho and his wife, Angela Ho, are residents of Calgary, Canada. On 25 September 2018, Mr Ho made a booking for him and his wife as passengers on voyage RU2007 with a travel agent, Rosanna Ho. Meaning no disrespect to her, but in an effort to avoid confusion, I will refer to Ms Rosanna Ho as Rosanna. Neither side of the case adduced any evidence from Rosanna.
Rosanna worked as a “Cruise Specialist” and “Consultant” for an organisation variously described as Expedia CruiseShipCenters and Paradise CruiseShipCenters. Those were apparently trading names or divisions of CruiseShipCenters International Inc of Vancouver.
It is not apparent whether Mr Ho met Rosanna face-to-face, or whether he dealt with her in some other way. It is said that he “contacted Cruise Ship Centers, based in Canada, and booked tickets on the Voyage” with Rosanna. At the time of booking he paid a deposit of CAD260 using a credit card and authorised Rosanna to use the same card for payment of the balance when required. At that time, Mr Ho was not provided with a passage contract or a link to a passage contract.
Upon Rosanna creating the booking in the POLAR system on 25 September 2018, a booking confirmation email with a booking confirmation document attached were automatically generated and sent by email from Princess to a general (i.e., not personal or personalised) email address for “princesscruises” at CruiseShipCenters. Because CruiseShipCenters is based in Vancouver, the bookings that its agents create are automatically assigned the agency base code for all other countries (i.e., referred to in [38(3)] above). As such, the booking documents that POLAR would have created and sent would have been those that were intended to incorporate the US terms and conditions.
The evidence does not reveal who at CruiseShipCenters receives such automatically generated booking confirmations addressed to that general email address. It may have gone directly to Rosanna, or it may have gone to someone else and then been forwarded to Rosanna, or it may never have been received by Rosanna. One simply does not know. It was not at that time sent to Mr Ho.
Three days later, on 28 September 2018, a booking confirmation email with a booking confirmation document attached was sent by email to Rosanna at her personal work email address at CruiseShipCenters. That was also not sent to Mr Ho.
On 30 October 2018, Mr Ho received two booking confirmation emails, both from Rosanna. The first was identified as being from her as a Cruise Specialist at CruiseShipCenters. The second, which was received by Mr Ho moments after the first, was a third Princess booking confirmation email with a booking confirmation document attached that Princess had sent to Rosanna at her email address. This time she did forward it to Mr Ho.
The CruiseShipCenters email to Mr Ho had the following relevant features:
(1)It recorded the booking date as 25 September 2018 and recorded Princess’s booking number.
(2)It recorded salient details of the cruise including the departure date from Sydney and identified the operating vessel.
(3)It recorded that the booking was for Mr and Mrs Ho and specified their booked cabin and the fare, namely CAD1,796.17 each amounting to a total of CAD3,592.34.
(4)It recorded that CAD510 had already been paid, CAD260 on 25 September 2018 as detailed above and a further CAD250 on 30 October 2018. The balance due was accordingly reflected as CAD3,082.34 which was said to be due on 2 December 2019.
(5)A “CANCEL FEE SCHEDULE (PER PERSON)” was set out as follows:
10DEC19 10.0%
12JAN20 50.0%
09FEB20 75.0%
23FEB20 100.0%
(6)Under a heading “Disclaimer” in bold, some terms and conditions were set out including the following:
Expedia CruiseShipCenters is acting as intermediary and agent for suppliers (“principals” identified in the attached or accompanying documents) in selling services, or in accepting reservations or bookings for services which are not directly supplied by this agency (such as cruises, air carriage, hotel accommodations, ground transportation, meals, tours, etc.). This agency, therefore, shall not be responsible for breach of contract or any intentional or careless actions or omissions on the part of such suppliers…
Note Expedia CruiseShipCenters reserves the right to charge a cancellation fee of $100 per stateroom on all cruise travel or $100 for air or other travel arrangements. All bookings are subject to the applicable Terms and Conditions of the individual travel provider (air line, cruise line, hotel, etc.) including any applicable cancellation penalties.
(Original emphasis.)
The Princess booking confirmation email forwarded to Mr Ho had the following relevant features:
(1)As with the CruiseShipCenters email, it recorded the relevant details of the booking – ship, departure port, date, cabin, passengers’ names, etc.
(2)It recorded the fare in exactly the same amounts as recorded in the CruiseShipCenters email, including the payment of the deposit, and the balance due on 2 December 2019.
(3)It set out a cancellation schedule with the same dates and percentages as those reflected in the CruiseShipCenters email.
(4)Under the heading “NOTICES” in bold, some terms and conditions are set out including:
Passports are required for international travel … See brochure for other terms and conditions, including the cancellation policy.
VISIT THE CRUISE PERSONALIZER AT PRINCESS.COM FOR FULL DETAILS, TO PROVIDE THE REQUIRED IMMIGRATION INFORMATION AND TO PR NT [sic] A BOARDING PASS AND LUGGAGE TAGS.
GENERAL INFORMATION
…
IMPORTANT NOTICE: Upon booking the Cruise, each Passenger explicitly agrees to the terms of the Passage Contract (https// Please read all sections carefully as they affect the passenger’s legal rights.
(Original emphasis.)
Mr Ho did not click on the link to the passage contract in the Princess booking confirmation email forwarded by Rosanna.
I should mention that neither the CruiseShipCenters booking confirmation nor the Princess booking confirmation identify the contracting carrier, i.e., Mr Ho’s contractual counterparty to the passage contract. The Princess booking confirmation has a logo for “Princess Cruises” which is both the name of Princess and a trading name of Carnival, so that it is unhelpful. However, Mr Ho’s points of claim allege that his contractual counterparty was Princess, and the defence to the points of claim admit that allegation. I accordingly accept that Princess was the contractual carrier.
C.4 The Princess “Cruise Personalizer” webpage
The evidence on behalf of the respondents is that prior to departure, passengers (or travel agents on their behalf) should log on to the Cruise Personalizer portal on the Princess website. Between the date of booking and the cruise departure date, passengers are sent a series of POLAR generated emails containing information about their upcoming cruise and encouraging them to log on to the Cruise Personalizer.
When a passenger clicks on the link to Cruise Personalizer on the website or in one of the emails, they are taken to a login page where they are required to input certain personal information and their booking number. Once having done that, they are taken to a copy of the Princess website terms and conditions. They must affirmatively select the box accepting those terms and conditions before proceeding, at which stage the passage contract terms and conditions appear in a window. Only a small portion of the terms and conditions is visible in the window at any one time, but all the terms and conditions can be seen by scrolling through the window. A checkbox for each passenger on the booking must be checked indicating acceptance of the passage contract on behalf of each passenger, and then a button labelled “proceed” can be clicked in order to proceed to the next stage of the Cruise Personalizer.
The records reveal that on 22 July 2019, Mr Ho logged on to the Cruise Personalizer webpage with a view to reviewing the details of his booking.
Mr Ho says that he recalls seeing a window containing the passage contract with a button with the word “agree”. He says that he clicked the button as he was unable to proceed to the next part of the Cruise Personalizer without doing so. I infer that it was the “proceed” button that he clicked. The evidence is that he first checked the checkboxes for him and his wife, which he must have done in order to be able to proceed.
Mr Ho says that he did not read the terms of the passage contract prior to clicking the button.
On 4 December 2019, Mr Ho’s credit card was charged the balance of the fare in accordance with the authority he provided to Rosanna at the time of the booking.
Also on 4 December 2019, Mr Ho received an email from Rosanna confirming that his “cruise aboard the Ruby Princess had been paid in full” and setting out the details of the booking. Attached to the email was also a booking confirmation from Princess. Rosanna’s email contained the same “Disclaimer” terms as the email of 30 October 2019, and the Princess booking confirmation contained the same “NOTICES” terms as its booking confirmation email of 30 October 2019 including a link to the passage contract.
One of the questions that arises in considering whether Mr Ho’s booking was subject to the US terms and conditions, and in particular to the terms on which the respondents rely in their stay application, is the capacity in which Rosanna acted. That is to say, did she act as Mr Ho’s agent, as contended by the respondents, or as Princess’s agent, as contended by the applicant, or in some form of dual agency? That is the question to which I now turn.
C.5 Whose agent was the travel agent?
I have already identified that CruiseShipCenters’ booking confirmation email to Mr Ho on 30 October 2018 stated that CruiseShipCenters acted “as intermediary and agents for suppliers (‘principals’ identified in the attached or accompanying documents)”. The accompanying booking confirmation email from Princess identified “Princess Cruises” (i.e., Princess) as the supplier. It is thus apparent that as between Mr Ho and CruiseShipCenters the arrangement or understanding was that CruiseShipCenters was Princess’s agent and not Mr Ho’s agent. That can be relevant to the question whether CruiseShipCenters was Mr Ho’s agent, amounting to a strong indication that it was not, but it cannot answer the question whether CruiseShipCenters was Princess’s agent because what a purported agent says or represents about their status as agent without the knowledge or endorsement of the purported principal cannot create the agency relationship or bind the purported principal: East Asia Company Ltd v PT Satria Tirtatama Energindo (Bermuda) [2019] UKPC 30; [2020] 2 All ER 294 at [61] per Lord Kitchin, delivering the advice of the Board; Crabtree-Vickers Pty Ltd v Australian Direct Mail Advertising & Addressing Company Pty Ltd [1975] HCA 49; 133 CLR 72 at 78 per Gibbs, Mason and Jacobs JJ.
The relationship between Princess and CruiseShipCenters for the 2018 calendar year, which is when Mr Ho’s booking was made, was governed by a “Strategic Sales Agreement”. There are two such agreements in evidence, it not being clear which one applied. They are tabs 1 and 4 of Confidential Exhibit EMR-1 that is exhibited to the affidavit of Elena Maria Rodriguez. It does not seem to matter which is the applicable agreement because they both included the following provisions:
(1)Princess would pay CruiseShipCenters a commission on sales (cl 1(a) and Addendum A).
(2)All of Princess’s then-current advertising policies, sales policies and general terms and conditions of sale and OneSource terms and conditions found at would apply to sales made under the agreement (cl 5).
(3)CruiseShipCenters agreed to market all Princess products in a competent and professional manner to the best of its ability and deal fairly and in good faith with its passenger clients and Princess. Nothing contained in the agreement should be construed to affect or defeat the agency relationship between CruiseShipCenters and its passenger clients (cl 6).
(4)The relationship of Princess and CruiseShipCenters to one another under the agreement is that of independent contractors and neither should be deemed the agent, partner or employer, or joint venturer with, the other for any purpose (cl 19).
In order for a travel agent to sell cruises for Princess in the US, Canada, Mexico or Puerto Rico they must first register to use something referred to as OneSource and accept its terms and conditions. OneSource is an online platform used across various brands operated by Carnival. Once a travel agent has registered to use the OneSource platform, the travel agent is able to access the POLAR online booking system.
The evidence is that in July 2018 the OneSource terms and conditions were updated and the updated version was then published to travel agents who were required to accept the updated terms and conditions. On 7 August 2018, Rosanna’s registration status on OneSource changed from “inactive” to “active” showing her acceptance of the revised terms and conditions on that date.
The OneSource terms and conditions to which Rosanna apparently agreed include the following:
(1)The relationship between Princess and the travel agent would be that of independent contractors, and neither Princess nor its respective officers, agents or employees would be held or construed to be the travel agent’s partners, joint venturers, fiduciaries, employees or agents.
(2)The travel agent agreed that it acts as an agent of all those persons booking, purchasing, or embarking on the cruise, and that it acts solely as an agent for the passenger(s) and not as an agent for Princess. Further, receipt by the travel agent of the passage contract or any other communications, notices or information from Princess shall constitute receipt of such materials by the travel agent’s passenger(s).
(3)The travel agent agreed that it is their responsibility to forward all cruise documents in any media format, including hard copy and electronic copy, to the passenger in a timely manner following receipt of them by the travel agent.
(4)The terms and conditions which govern the cruise bookings for Princess were set forth in the passage contract and incorporated in the travel agent contract by reference. There was a link to the passage contract terms and conditions. The travel agent was responsible to familiarise itself with all sections of the passage contract as they govern the passenger’s legal rights, particularly with respect to cancellation, the provision of medical care, privacy rights, Princess’s liability, and the passenger’s right to sue or arbitrate.
(5)The travel agent consented to receipt of an electronic passage contract or cruise contract, and acknowledged such receipt on behalf of each passenger for whom a booking was made. The travel agent represented and warranted that it was authorised to accept and agree to all terms and conditions set forth in the passage contract on behalf of each passenger for whom a booking had been made, including any minor, heirs, relatives and personal representatives.

The respondents accept that what is stipulated between CruiseShipCenters and Princess cannot determine that CruiseShipCenters acted as agent for Mr Ho, but submit that the stipulations between CruiseShipCenters and Princess that the former was not the latter’s agent is a strong basis to infer that CruiseShipCenters was Mr Ho’s agent. I reject that submission for two reasons. The first is that it is illogical. There is nothing that could have been said or agreed between CruiseShipCenters and Princess of which Mr Ho was unaware that could have a positive bearing on the nature of the contractual relationship between CruiseShipCenters and Mr Ho. Secondly, and decisively, there is the conflicting stipulation between CruiseShipCenters and Mr Ho that CruiseShipCenters acted as Princess’s agent (see [49(6)] above).
The onus is on the respondents to prove agreement to the contractual terms upon which they rely in the defence and as a basis for their stay application. To the extent that they rely on CruiseShipCenters being the agent of Mr Ho for that purpose, which they do, that is part of the onus that they must discharge. On the evidence before me there is nothing to support the inference that CruiseShipCenters acted as Mr Ho’s agent. CruiseShipCenters appears to have acted as an intermediary, being the agent of neither party between whom the principal contract was concluded, namely Mr Ho, on the one hand, and Princess, on the other.
C.6 Analysis and conclusion
Mr Ho made a booking for himself and his wife on 25 September 2018 and he paid a deposit. Rosanna made that booking on Princess’s POLAR booking system which caused a booking confirmation email to be generated by Princess and immediately emailed to CruiseShipCenters. Looked at objectively, Princess is to be understood as having considered itself booked for the cruise; aside from anything else, “confirmation” must be understood to mean that the booking was firm and binding. It does not affect the analysis as to the conclusion of the booking that that confirmation was not provided to Mr Ho at that time. There was a firm booking upon which he could undoubtedly have relied in the event that there was subsequently a dispute about it.
At that time he was told nothing about the terms and conditions of the booking other than the principal details. I infer that that was the fare, deposit, payment of the balance, date and port of departure, ship, voyage, and cabin – those are details he would have had to have known at that time for Rosanna to make the booking on POLAR. On the facts as I have found them, there does not appear to be any room for the analysis urged by the respondents which has it that the booking confirmation was an offer by the carrier and that it was open to Mr Ho to accept or reject it. By the time Princess sent the booking confirmation to Rosanna, Mr Ho had already paid the deposit; he had accepted the offer of the cruise on the basis of all the material details as conveyed to him by Rosanna.
Analysing the contract formation on the basis of offer and acceptance, the offer was made by Princess displaying to Rosanna in POLAR the availability of the cruise with the particular cabin at the particular price. That was then accepted by Rosanna making the booking and causing Mr Ho’s credit card to be debited in favour of Princess. To the same effect, Rosanna can be regarded as having conveyed the offer appearing on her screen to Mr Ho, and he accepted by conveying such acceptance to Rosanna.
On that basis, none of the clauses set out in Princess’s US terms and conditions was incorporated. To the extent that he was given notice of those, that came only more than a month later when on 30 October 2018 he was sent Princess’s booking confirmation email. With reference to the principles identified above, that was too late. Since Rosanna did not act as Mr Ho’s agent, any knowledge of hers or notification to her cannot be ascribed to Mr Ho.
The respondents’ reliance on Mr Ho apparently accepting the US terms and conditions when in July 2019 he clicked on the “proceed” button after logging on to the Cruise Personalizer is also misplaced; that came too late. The contract had long since been concluded. The confirmation email told Mr Ho that he should visit the Cruise Personalizer “for full details, to provide the required immigration information and to print a boarding pass and luggage tags.” The reference to “full details” would appear to be a reference back to “other terms and conditions, including the cancellation policy” in the preceding sentence, but there is no suggestion in the booking confirmation that there were still further contractual terms to be agreed.
When Mr Ho logged on to the Cruise Personalizer in order to do what he had been told to do, namely to provide immigration information and to print a boarding pass and luggage tags, he could not proceed beyond the “proceed” button attached to the window that displayed the US terms and conditions. It was in order to proceed, to achieve what he had been told to do, that he pressed proceed, not to retrospectively agree to and apply terms and conditions to the booking that he had made some nine months previously. It is doubtful that such an ex post facto agreement would in any event have been effective given the want of consideration flowing from Princess.
I therefore conclude that the US terms and conditions were not incorporated into Mr Ho’s contract.
An alternative analysis is that the booking confirmation that was sent to Mr Ho on 30 October 2018 forms part of the contract. That could be on the basis that the booking was only concluded then, which in my view is clearly wrong for the reasons already given, or because the booking on 25 September 2018 was impliedly on the basis of the terms of a booking confirmation to be provided and because on 30 October 2018 the deposit was still refundable. That is to say, at that time if Mr Ho had disagreed with or disapproved of the terms of the booking confirmation he could have cancelled the booking without cost. Nevertheless, that language of “cancellation” is indicative of there having already been a firm booking at that time which supports my primary analysis. Also, in Oceanic Sun Line (at 229), Hollingworth v Southern Ferries Ltd (The Eagle) [1977] 2 Lloyd’s Rep 70 was cited as authority for the proposition that a mere statement in a carrier’s brochure that the carrier contracted on its conditions of carriage was not enough to make those conditions terms of a contract of carriage subsequently made with an intending passenger who had read the brochure. If that is so, there would seem to be less of a basis to conclude that a booking which makes no mention of conditions of carriage would nevertheless be regarded as impliedly subject to conditions of carriage to be advised.
In any event, on the alternative analysis that the 30 October 2018 booking confirmation formed part of the passage contract the question arises whether the US terms and conditions were incorporated. In my view, the US terms and conditions were not generally incorporated.
As mentioned, the booking confirmation provided a link to what was said to be to the passage contract at a URL which was displayed as The respondents’ witness Ms Santiago explained (at [35]-[36] and [45] of her affidavit) that clicking on that link would open a page which she reproduced (at tab 9 of LFS-1). That page contained links to three different possible passage contracts as follows (the underlining reflecting links to other pages containing the applicable terms):
Princess Cruise Lines, Ltd Passage Contract
This contract generally applies to most voyages except select itineraries departing from Australia, Japan, Singapore, China, and Korea.
Passage Contract
This contract applies to select voyages from ports within Australia, Japan, Singapore, China, and Korea.
Princess Cruise Lines, Ltd. Passage Contract for Chartered Voyages
This contract generally applies to most chartered voyages except select itineraries departing from Australia, Japan, Singapore, China, Korea and Taiwan.
Already booked?
Sign in to Cruise Personalizer to access the Passage Contract that applies to your booking.
Such a situation is similar to that identified in Browitt at [88]-[89]. There is no reasonable basis on which Mr Ho could have been in a position to identify which of the three different contract options was said to be applicable to his booking. It is not objectively discernible what voyages or itineraries are the “select” ones referred to, or what voyages are “chartered voyages”.
The respondents submit that Mr Ho would nonetheless have been able to view the US terms and conditions which they claim applied because of the invitation on the webpage to booked passengers to sign in to the Cruise Personalizer portal to view the particular passage contract comprising the US terms and conditions said to apply.
Aside from that being yet another step required of Mr Ho before he could see the contract terms said to apply to a contract he had already made, the real question for the purposes of the stay application is whether the exclusive jurisdiction clause and the class action waiver clause were incorporated. There is nothing in the booking confirmation emails that draws particular attention to them or gives any warning about them other than the wording that the terms of the passage contract could “affect the passenger’s legal rights”. That says no more than that the passage contract was a contract; clearly, the terms of a contract can affect legal rights. Thus, to say that much draws no particular attention to onerous or unusual clauses.
As indicated, in Oceanic Sun Line (at 228-229) it was held that in a ticket case the carrier must do all that is reasonably necessary to bring an “exemption clause” to the passenger’s attention at the time of contracting in order for the clause to be incorporated. The same analysis was applied to an exclusive jurisdiction clause in favour of “the courts of Athens Greece”.
In Baltic Shipping there were terms and conditions of carriage limiting the liability of the carrier. Gleeson CJ held (at 8G) that a booking form which stated that the booking would be subject to the conditions and regulations printed on the tickets that would be issued in the future may have been sufficient notice of many of the terms and conditions of carriage, but it was inadequate notice of the existence of clauses significantly limiting the passenger’s common law liability. The Chief Justice held (at 9A) that it was the fact and extent, rather than the precise mechanics, of the limitation that were of primary importance. Thus, the limitation clauses did not form part of the contract of carriage.
Kirby P, with reference to the specifics of the limitation of liability being with reference to special drawing rights of the International Monetary Fund, held (at 24-25) that the limitation of liability was “unusual” such that the passenger was entitled to take the view that she would be issued with a ticket which would contain no such terms that would limit the carrier’s liability to her.
In eBay International AG v Creative Festival Entertainment Pty Ltd [2006] FCA 1768; 170 FCR 450, Rares J (at [19]) explained:
Where a ticket or other document is intended by the issuer to contain terms of the contract such as an exemption clause or a foreign jurisdiction clause or other special condition, the issuer cannot rely on those terms unless, at the time of contract, it did all that was reasonably necessary to bring the terms to the other party’s attention.
The relevant term in that case provided that tickets to Big Day Out would be cancelled and the holder refused entry if they were re-sold for profit. The term was not brought to a purchaser’s attention or indeed at all (at [52]) because it was printed on the back of a physical ticket, which was sent out weeks after purchase.
At [53], Rares J referred to Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163, where at 170D, Lord Denning MR said that “[i]n order to give sufficient notice, it would need to be printed in red ink with a red hand pointing to it – or something equally startling.” The term in that case appeared on a ticket issued upon driving into a car park and purported to exclude liability for personal injury.
In Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd [1989] QB 433, the plaintiff delivered to the defendant 47 transparencies with a delivery note containing a number of conditions. By condition 2, all transparencies had to be returned within 14 days otherwise a holding fee of GBP5 per transparency per day plus VAT would be charged. That note was not read by the defendant and the transparencies were returned four weeks later. The defendant refused to pay the GBP3,783.50 that was invoiced. On the defendant’s appeal to the Court of Appeal of England and Wales, the primary judge’s award to the plaintiff was reduced to a quantum meruit, being GBP3.50 per transparency per week. Dillon LJ (at 438) said that the clause was “very onerous” because the defendant could not conceivably have known, without having their attention drawn to it, that the plaintiff proposed to charge a holding fee at such an exorbitant rate. And at 445, Bingham LJ said:
Condition 2 contained a daily rate per transparency after the initial period of 14 days many times greater than was usual or (so far as the evidence shows) heard of. For these 47 transparencies there was to be a charge for each day of delay of £235 plus value added tax. The result would be that a venial period of delay, as here, would lead to an inordinate liability. The defendants are not to be relieved of that liability because they did not read the condition, although doubtless they did not; but in my judgment they are to be relieved because the plaintiffs did not do what was necessary to draw this unreasonable and extortionate clause fairly to their attention.
On the basis of Oceanic Sun Line, Baltic Shipping and the other authorities referred to, the exclusive jurisdiction clause – including its complexity with regard to the different systems of law to apply and the distinction between types of claims subject to determination in nominated courts and others in arbitration – and the class action waiver clause, are onerous and unusual and serve to limit the passenger’s rights. In those circumstances, reasonable steps were required to bring them to the attention of Mr Ho. In my assessment, the generality of the statement in the booking confirmation that the terms of the passage contract “affect the passenger’s legal rights” was insufficient for that purpose.
In the circumstances, if the US terms and conditions were otherwise generally incorporated, I would hold that on the authorities the exclusive jurisdiction clause and the class action waiver clause were in any event not incorporated.
D. IS INCORPORATION OF THE U.S. CLAUSES A COMMON QUESTION?
On the basis of evidence which they submit supports the conclusion that all the passengers whom they identify as being subject to the US terms and conditions were as a matter of fact and law so subject, the respondents urge me to declare that all the US sub-group members are subject to the US terms and conditions. They do so on the basis that the question of incorporation of the US terms and conditions is a common question to all the US sub-group members.
The terminology of “common question” comes from s 33C(1)(c) of the FCA Act, which refers to claims that give rise to “a substantial common issue of law or fact”, and s 33H(1)(c), which refers to “the questions of law or fact common to the claims of the group members”. See Dillon v RBS Group (Australia) Pty Ltd [2017] FCA 896; 252 FCR 150 at [63] per Lee J. Also, s 33Q, which provides for the appointment of a sub-group, refers to “the issue or issues common to all group members” and “issues common to the claims of some only of the group members”.
As explained in Dillon (at [63]-[66]), the Court’s extensive case management powers give flexibility to the efficient management of class actions. That can include the determination of questions of fact and law that have a “degree of commonality”, and it can involve “sample” group members rather than formally appointed sub-group representatives. See Asirifi-Otchere v Swann Insurance (Aust) Pty Ltd (No 2) [2020] FCA 1355; 148 ACSR 14.
I am, however, not satisfied that there is sufficient commonality to decide even integers of the question of incorporation of the US terms and conditions to the US sub-group members’ passage contracts at this stage. The case of Mr Ho illustrates the idiosyncratic nature of the question of incorporation; it turns in part on the individual passenger’s method of booking, the passenger’s interactions with the travel agent or Princess employee at a contact centre, the contractual relationship between the passenger and the travel agent, the complex contractual relationship between a particular travel agent and Princess, the sequence of the passenger’s receipt of documents and the payment of the deposit, and their logging on to the Cruise Personalizer. For each member of the US sub-group, one or more of those variables may be different.
The applicant also raises an objection of principle which is that she represents the group members, including the US sub-group members, only with respect to the claims that are the subject of the proceeding but not with respect to their individual claims: Timbercorp Finance Pty Ltd (in liq) v Collins [2016] HCA 44; 259 CLR 212 at [53]. That raises a question with regard to the applicant’s authority to represent other group members in relation to defences that are raised that are peculiar to their claims but inapplicable to hers, such as the respondents’ reliance on the US terms and conditions in this case.
The applicant’s solicitor, Ms Antzoulatos, gave evidence that her firm had been able to contact approximately 46 passengers in the US and Canada for the purposes of identifying a US sub-group representative. The majority of those passengers did not wish to be appointed the US sub-group representative or did not provide sufficient instructions. In addition to Mr Ho, there were eight passengers based in Canada and six passengers based in the US who provided instructions about the process that they undertook to book their tickets for the voyage. The summaries of those processes set out in Ms Antzoulatos’s affidavit reveal the number of differences which could lead to different conclusions with regard to incorporation, and also in respect of all of them there is at least some doubt that the US terms and conditions were incorporated.
In the circumstances, it is neither appropriate that the question of incorporation of the US terms and conditions to the passage contracts of all US sub-group members is determined as a separate issue, nor that it is determined as a common question.
Having said that, on the evidence of Ms Santiago referred to earlier, at least in respect of passengers whom the respondents regard as having contracted on the US terms and conditions, whatever route they took for the bookings and whether as authenticated or unauthenticated passengers, the passage contract link in their booking confirmation would have taken them to a selection of three further links to different contracts without guidance as to which was applicable. On that basis it is difficult to see how any of the US sub-group members’ passage contracts were subject to the US terms and conditions.
E. ARE THE RELEVANT U.S. CLAUSES ENFORCEABLE?
In view of the conclusion that I have reached that the US terms and conditions were not incorporated in Mr Ho’s contract, and even if they were the exclusive jurisdiction clause and the class action waiver clause were nevertheless not incorporated, it is not strictly necessary for me to deal with the applicant’s reliance on various grounds to contend that those clauses are in any event void or unenforceable.

Ms Shultz and Judge Walker refer to Executive Software North America, Inc v United States District Court for the Central District of California 24 F 3d 1545 (9th Cir 1994) as being binding authority on the US Court on the application of §1367. With reference to sub-s (c)(4), the Court held (at 1557) that Congress’s use of the word “other” to modify “compelling reasons” for declining jurisdiction means that the “other compelling reasons” should be of the same nature as the reasons that gave rise to the categories listed in sub-s (c)(1)-(3). Thus, “compelling reasons” should be those that lead a court to conclude that declining jurisdiction “best accommodates the values of economy, convenience, fairness, and comity” (citing Carnegie-Mellon University v Cohill, Judge, United States District Court for the Western District of Pennsylvania 484 US 343 (1988) at 351). The Court held (at 1558) that Congress sounded a note of caution that the basis for declining jurisdiction should be extended beyond the circumstances identified in sub-s (c)(1)-(3) “only if the circumstances are quite unusual”, and that declining jurisdiction outside of sub-s (c)(1)-(3) “should be the exception, rather than the rule.”
The exceptional circumstances Judge Larson refers to are that the interests of judicial economy, convenience, fairness and comity would be best served by having the ACL claims proceed in an Australian court.
Judge Larson’s reasons that exceptional circumstances for declining jurisdiction exist in this case include that none of the 11 currently pending actions in the US Court asserts ACL or otherwise analogous claims. Thus, he says, if upon declination of supplemental jurisdiction, the US sub-group members were permitted to re-join the action in Australia upon a lift of the stay, then the interests of judicial economy would be best served by that outcome. That is because having a single court adjudicate the unique issues posed by the ACL claims, rather than multiple courts in different countries, will be both most efficient and least likely to result in disparate interpretations of Australian law. Judge Larson also says that the parties’ forum selection clause in favour of the US Court would not be given particular weight because the Australian proceeding will proceed for the non-US sub-group members regardless of where the US sub-group members’ claims are heard.
It seems to me that Judge Larson’s considerations of why the ACL claims would best be heard in the proceeding in Australia – namely, that that course would best serve the interests of judicial “economy, convenience, fairness and comity” – are compelling. However, the underlying assumption needs to be that the US sub-group claims are stayed in Australia in favour of being pursued in the US Court in accordance with the parties’ choice of venue. It cannot be assumed in those circumstances that if the US Court declined to exercise jurisdiction the sub-group members could simply re-join the Australian proceeding. Also, since there are already 11 actions in the US Court based on the same underlying factual circumstances and the US sub-group members can assert claims within the US Court’s original jurisdiction, there is no particularly compelling, or exceptional, reason to decline to exercise jurisdiction in the US Court in favour of the Australian proceeding.
But more significantly, it seems to me that Judge Larson gives too little recognition to the exclusive jurisdiction clause. In that regard, the US generally and California in particular, like Australia, has a strong public policy favouring enforcement of forum selection clauses, which are “prima facie valid and should be enforced unless enforcement is shown by the resisting party to be ‘unreasonable’ under the circumstances”: The Bremen v Zapata Off-Shore Co 407 US 1 (1972) at 10; Smith, Valentino & Smith, Inc v Superior Court of Los Angeles County 17 Cal 3d 491 (1976) at 495-496 (California Supreme Court’s enforcement of such a clause said to be “in accord with the modern trend which favors enforceability of such forum selection clauses”).
Of the various questions to answer under §1367, this one seems to me to be the most evenly balanced. Nevertheless, once supplemental jurisdiction is established under sub-s (a) and if no ground for declining to exercise that jurisdiction under sub-s (c)(1)-(3) is established, then it is unlikely that the exercise of jurisdiction will be declined under sub-s (c)(4).
Summary of conclusions on US law
To summarise, in my view the US Court would have supplemental jurisdiction in respect of the ACL claims brought by those of the US sub-group members who can assert cognisable tort claims within the US Court’s original jurisdiction. As explained above, it may be that some US sub-group members do not have cognisable tort claims within the US Court’s original jurisdiction, but on the information currently available it is not possible to identify who they are or how many of them there may be.
Further, whilst predicting how another court, in particular a foreign court, will exercise a discretion is a difficult exercise with questionable success, in my view it is unlikely that the US Court would exercise its discretion to decline supplemental jurisdiction over the identified ACL claims that are brought with cognisable tort claims within its original jurisdiction. Assumptions underlying that conclusion are that the respondents give and adhere to the undertaking that they have proffered not to raise any choice of law point against the ACL claims being heard and determined by the US Court and that this Court had stayed the US sub-group members’ claims.
In the result, and leaving aside for the present the advantage that the US sub-group members have in being able to pursue their claims in Australia as part of a representative proceeding, there is no particular personal or juridical advantage that they enjoy in Australia.
If the respondents could not rely on the class action waiver clause in this Court, whether on the basis that it was not incorporated (as I have found) or, if incorporated, it was unenforceable (as I have also found, albeit tentatively), Mr Ho would have a clear juridical advantage in proceeding in this Court rather than in the US Court. That is because, as I have explained above, class action waiver clauses have long been recognised and enforced in the US.
I turn now to consider the question whether there are “strong reasons” to refuse a stay if the exclusive jurisdiction clause had been incorporated.
I.1.2 Should the US sub-group claims be stayed on Akai grounds?
In my view there are strong reasons for not enforcing the exclusive jurisdiction clause even if it was incorporated and enforceable. They are the following, and are in essence the same whether one is considering only Mr Ho’s claim or the claims of all the US sub-group members.
First, whether or not the US sub-group claims are stayed in this Court, and also leaving the UK sub-group claims to one side for the moment, the representative proceeding in this Court will continue. It will continue in respect of the vast majority of the affected passengers on the voyage in question. Moreover, the claims asserted by or in relation to those passengers and the facts and evidence underlying those claims, apart from variations peculiar to individual claimants most notably with regard to the assessment of their damages, are identical to the US sub-group members’ claims. Staying the US sub-group claims would accordingly result in the fracturing of the litigation with essentially identical claims being brought in this Court in a representative proceeding and in the US Court in individual proceedings, albeit presumably case managed together.
There is a firm legal policy against fracturing litigation in that way. It is wasteful of the parties’ resources and it is wasteful of judicial resources. But more particularly, it runs the risk of producing conflicting outcomes in different courts. That is undesirable for a number of reasons, including that it brings the administration of justice into disrepute.
The respondents point to the 11 existing proceedings in the US Court brought by passengers arising out of their experience on the same voyage. They say that the litigation is therefore already fractured so this point, if it carries any weight at all, should carry very little weight. I am not persuaded by that submission. The 11 existing proceedings do not include any ACL claims. The ACL claims would therefore be fractured across different litigation if I was to accede to the respondents’ application for a stay. But further, at present there are 12 independent proceedings, 11 in the US Court and the one representative proceeding in this Court. If the US sub-group members’ claims were stayed, there could be an additional nearly 700 individual proceedings – although one does not know how many US sub-group members there are or how many would elect to sue individually in the US. Nevertheless, that level of potential fracturing is not easily to be justified or tolerated.
The weighty concern about the fracturing of the litigation, and hence the consideration of the strong gravitational pull of the continuing representative proceeding in respect of the non-US sub-group passengers, is not particularly affected even if one were to assume that the US sub-group members’ claims were governed by US maritime law. That is because the ACL claims, the relevant facts and even the principal integers of liability in negligence would all still be common.
Secondly, as explained in Epic v Apple (FCAFC) (at [110]), the process of determining claims in the US Court through the prism of expert evidence about the content of Australian law is not the same as ascertaining and applying the law directly. One of the difficulties and uncertainties involved in proving foreign law is the risk that important aspects of the foreign law will be lost in translation. Matters of meaning and context may be overlooked or misconstrued. Also, a judgment of the foreign court is unlikely to make a contribution to the body of Australian law.
Whilst not to the same extent as those in respect of CCA Pt IV proceedings as explained in Epic v Apple (FCAFC) (at [95]-[122]), I consider that there are public policy considerations in favour of ACL claims being heard in Australian courts. They are not such as to by themselves constitute “strong reasons” to refuse the stay application, but they are to be considered cumulatively with other considerations which together can amount to “strong reasons”. The policy considerations include that the various provisions of the ACL articulate standards of commercial behaviour that are expected of corporations undertaking trade and commerce in Australia and they offer protections and remedies to consumers in Australia. The ACL thus sets normative standards for commercial conduct in Australia, and it provides remedies and protections when those standards are not observed. It is desirable, although not mandatory, that the ACL’s normative standards and remedies are interpreted and applied by an Australian court.
Thirdly, whilst on my analysis of the expert evidence on US law, and on the basis of the undertaking proffered by the respondents, the ACL claims could be brought in the US Court with the result that the US sub-group members have no juridical advantage in proceeding in this Court, that depends on the respondents being able to rely on the class action waiver clause in this Court. However, if, as I have found, the respondents cannot rely on the class action waiver clause, then the US sub-group members have a very significant juridical advantage in proceeding as part of the representative proceeding in this Court because they would not be able to participate in a representative proceeding in the US Court.
Of course, if the respondents could rely on the class action waiver clause as against the US sub-group members, the clause itself would provide a substantial basis to either stay the proceeding in respect of the US sub-group members or to de-class them pursuant to an order under s 33ZF of the FCA Act – which I explain in the next section, section I.2. So consideration of the effect of the class action waiver clause in the context of there being “strong reasons” not to stay the proceeding in the face of the exclusive jurisdiction clause must be on the assumption that the class action waiver clause is not available to the respondents in this Court.
In the result, the respondents’ application for a stay of the claims of the US sub-group members in reliance on the exclusive jurisdiction clause fails.
I.2 The class action waiver clause
As mentioned, the class action waiver clause was not incorporated in Mr Ho’s contract (section C). If it was, the applicant contends that it is void or unenforceable. I have also concluded that if it was incorporated, it would be void, by reason of s 23 of the ACL (section E). I therefore consider whether the clause might provide a proper basis for a stay of the proceeding by Mr Ho on the assumption that I am wrong about the clause not being incorporated and about it being void.
The class action waiver clause includes a contractual commitment by the passenger to bring any claim “individually and not as a member of any class or as part of a class or representative action” and an express agreement to waive “any law entitling [them] to participate in a class action”. In those circumstances, if the class action waiver clause was incorporated and it was enforceable, it seems to me that it would provide an unanswerable basis for some form of relief that would give effect to that obligation. The question is what relief would be appropriate.
The primary relief sought by the respondents is a stay of proceedings in respect of those group members subject to the clause. I am, however, unconvinced that that would be appropriate. That is because the claims have been properly commenced in this Court and enforcement of the class action waiver clause does not require that those claims be stayed. Rather, enforcement requires only that those subject to the clause no longer be a part of the group membership.
Support for the inappropriateness of a stay in such circumstances can be found in the provisions of Pt IVA of the FCA Act. For example, s 33P of the Act provides:
33PConsequences of order that proceeding not continue under this Part
Where the Court makes an order under section 33L, 33M or 33N that a proceeding no longer continue under this Part:
(a)the proceeding may be continued as a proceeding by the representative party on his or her own behalf against the respondent; and
(b)on the application of a person who was a group member for the purposes of the proceeding, the Court may order that the person be joined as an applicant in the proceeding.
And s 33S of the Act provides:
33S Directions relating to commencement of further proceedings
Where an issue cannot properly or conveniently be dealt with under section 33Q or 33R, the Court may:
(a)if the issue concerns only the claim of a particular member—give directions relating to the commencement and conduct of a separate proceeding by that member; or
(b)if the issue is common to the claims of all members of a sub‑group—give directions relating to the commencement and conduct of a representative proceeding in relation to the claims of those members.
These provisions contemplate that where a representative proceeding is declassed (s 33P) or where a sub-group or individual issue cannot be conveniently dealt with under s 33Q or s 33R (s 33S), the claims of group members may yet continue in this Court either as separate proceedings or, more importantly, former group members may be joined as applicants to the same proceeding. The grant of a stay, which would prevent an individual continuing proceedings on an individual basis in this Court, is inconsistent with those possibilities. As such, I do not consider that a stay would be an appropriate order.
How then can the Court enforce the class action waiver clause? In Dyzcynski v Gibson [2020] FCA 120; 381 ALR 1, Lee J (at [336]) set out the ways in which a group member can cease to be a group member:
(1) by opting out before the date fixed by the Court for opting out under s 33J (or later pursuant to leave granted by the Court);
(2)when the claim of the group member is no longer able to be advanced because the relevant dispute has been quelled by a settlement binding group members: see ss 33V and 33ZB;
(3) by a “declassing” order made by the exercise of the Court’s discretion under either s 33L (where there are fewer than seven members), s 33M (excessive costs of distribution) or, more commonly, s 33N (where, for identified reasons, the Court is satisfied it is in the interests of justice to “declass”, including after an initial trial of common issues to provide for group member claims to be advanced individually and determined);
(4) when the claim of the group member is no longer able to be advanced because the relevant individual dispute has been quelled by the claim of the group member being determined prior to, or at the same time, as the determination of the applicant’s claim and common issues (this occurs, for example, when a “sample” group member claim is determined at the initial trial, although, outside this circumstance, such an occurrence would be unusual);
(5) by being excluded following an application by the applicant “to amend the application commencing the representative proceeding so as to alter the description of the group” pursuant to s 33K(1);
(6) by being excluded following an order being made by the Court, including following application by the applicant to amend the group description if the group definition was not included in the application (as required by s 33K(1)), but was rather contained in the statement of claim, relying on the power in s 33ZF to make the amendment, which power allows the Court to make any order the Court thinks appropriate or necessary to ensure that justice is done in the proceeding: see Ethicon Sàrl v Gill (at [14]–[17]);
(7) if the group member becomes a “sub-group representative party” pursuant to an order made under s 33Q;
(8) when the Court gives a direction under s 33S for a separate proceeding to be commenced by a group member (or a direction that another representative proceeding be commenced);
(9) if the group member is substituted as the representative party pursuant to an order under s 33T or s 33W; and
(10) by the dismissal of an otherwise properly commenced representative proceeding without consideration of the substance of any claims, for example, when it constitutes an abuse of process (for completeness, it is worth noting that this is not the same situation as where a proceeding that purports to be a Pt IVA proceeding is dismissed by reason of a failure to be properly constituted — such a proceeding, of course, was never a valid class action and hence there never were group members).
His Honour added (at [337]) that “[o]ther than by one of these means, or by some unusual bespoke order, a group member at the commencement of a class action remains a group member during the currency of the class action.”
It appears that there is no circumstance in those enumerated by Lee J and no provision in Pt IVA that is directly on point to the circumstances contemplated here. In particular, there is no provision that is equivalent to s 33KA of the Supreme Court Act 1986 (Vic), which provides:
33KA Court powers concerning group membership
(1)On the application of a party to a group proceeding or of its own motion, the Court may at any time, whether before or after judgment, order—
(a) that a person cease to be a group member;
(b) that a person not become a group member.
(2) The Court may make an order under subsection (1) if of the opinion that—
(a) the person does not have sufficient connection with Australia to justify inclusion as a group member; or
(b) for any other reason it is just or expedient that the person should not be or should not become a group member.
(3) If the Court orders that a person cease to be a group member, then, if the Court so orders, the person must be taken never to have been a group member.

Accordingly, the Court might have to fashion an appropriate “bespoke” order under s 33ZF, being the general “gap filler” provision in Pt IVA: see Ethicon at [17] per Allsop CJ, Murphy and Lee JJ. That may be in the form of amending the group definition or by excluding certain members from the group. For the present, none of these issues require determination because of my primary findings.
J. CLEARLY INAPPROPRIATE FORUM
This section of the judgment deals with the respondents’ basis for a stay of the US sub-group members’ claims if, as I have found, the exclusive jurisdiction clause is not incorporated and therefore cannot be relied on by the respondents. It also deals with the stay application in respect of the UK sub-group members’ claims. The reasoning in respect of the sub-group members applies equally to Mr Ho’s and Mrs Wright’s individual claims. The relevant principles have been identified in section F.4 above.
The respondents identify the following factors in support of their contention that this Court is a clearly inappropriate forum to hear and determine the US and UK sub-group members’ claims:
(1)The location of the evidence: The bulk of the relevant medical evidence, including medical records and witnesses, as well as the sub-group members themselves, is likely to be located abroad.
(2)The proper law of the contract: The proper law of the contract of passengers subject to the US terms and conditions is US law and the proper law of the contract of passengers subject to the UK terms and conditions is English law. Thus, the respondents submit, any question of liability on the part of the respondents to any claims “tethered to contractual terms and conditions” will fall to be determined by reference to those systems of law rather than to the law applicable in NSW.
(3)The applicable law: The respondents submit that the law applicable to the resolution of the claims in tort will not be that of NSW, or any other Australian state.
In addition, in respect of the US sub-group members’ claims, the respondents submit that because there are already 11 proceedings by Ruby Princess passengers in the US Court, to allow the US sub-group members to pursue their claims in the present proceeding would lead to the risk of simultaneous proceedings with overlapping issues in multiple jurisdictions.
In respect of the UK sub-group members’ claims, the respondents raise the following additional factors:
(1)The effect of UK law: The respondents submit that in respect of the tort claims, the law of the UK will be dispositive for the UK sub-group members’ claims. It is said that the Athens Convention will apply to those claims as a result of English law being the law to be applied to the determination of the claims, for the reasons expressed by their expert witness, Mr Kimbell QC.
(2)The jurisdiction clauses: The respondents submit that the UK sub-group members agreed to a non-exclusive foreign jurisdiction clause in favour of the courts nominated by the Athens Convention and EU Regulation 392/2009 in respect of claims for death or personal injury arising out of international carriage by sea, and a non-exclusive jurisdiction clause in favour of the English courts for claims relating to the contract between the parties. These clauses are said to be relevant because they ensure that the UK sub-group members will not face any jurisdictional arguments seeking to restrain any proceedings brought by them in the UK or the courts listed in the Athens Convention and EU Regulation 392/2009.
(3)Equivalent causes of action under English law: The respondents submit that claims for economic losses that may be made by passengers under English common law and/or statute are substantially similar to those advanced under the ACL in the present proceeding.
(4)Simultaneous proceedings in multiple jurisdictions: The respondents submit that the UK sub-group members are eligible to benefit from EU rights relating to travel packages (pursuant to clause 2 of the agreement) and juridical advantages conferred by the Athens Convention and EU Regulation 392/2009, whereas other group members are not. Thus, they submit that individual UK group-members may institute their own proceedings at the conclusion of the present representative proceeding which will create a plethora of proceedings in multiple jurisdictions.
It is convenient to consider the position of the US sub-group first.
J.1 The US sub-group
Since I have already concluded that even if the respondents could rely on the exclusive jurisdiction clause in favour of the US Court there would nonetheless be strong reasons not to enforce the exclusive jurisdiction clause, a fortiori this Court is not a clearly inappropriate forum; if there are “strong reasons” not to enforce a foreign exclusive jurisdiction clause and to allow claims to proceed in this Court it is not possible that this Court might be regarded as a clearly inappropriate forum for the claims to be litigated. All the factors identified in section I.1.2 above count against the stay on a clearly inappropriate forum basis. I will nevertheless consider the factors raised by the respondents.
It is hard to be sure that most of the medical evidence will not be in NSW, or in Australia, because there is no evidence before me about where the US sub-group members who contracted COVID-19, or other passengers who contracted COVID-19 in relation to whom the US sub-group members claim, were treated after disembarking from the Ruby Princess. But even assuming that most of that evidence will be abroad, this is a weak consideration. The reason is that the medical evidence will not be relevant to the common issues which will be decided in the representative proceeding. Thereafter, assuming liability and no settlement of quantum, there will be independent enquiries into factors relevant to quantum. There are many ways that that may be done which will not necessarily mean that passengers who contracted COVID-19 or those who treated them will have to give evidence in Australia; by its nature much or possibly all of the evidence will be documentary, and that which is not may be able to be given remotely (which has become common).
Insofar as the proper law of the contract is concerned, that is also a weak consideration. First, on my findings on incorporation the choice of law clause was not incorporated. Secondly, even if it was incorporated, the ACL claims will be determined in accordance with the law of the forum and it is too early to determine what system of law will cover the tort claims. The role of the proper law of the contract is therefore likely to be somewhat limited.
I have already dealt with the question of the applicable law to the tort claims, which at this stage must be regarded as a neutral factor.
Finally in relation to the matters raised by the respondents, the fact that there are 11 individual proceedings in the US Court by Ruby Princess passengers does not counterbalance the powerful gravitational pull of the representative proceeding in this Court in respect of all the non-US sub-group members (even if one also excludes the UK sub-group members). The representative proceeding will proceed in this Court in respect of some 1,800 passengers (reduced by those who opt out, if any) on the same issues as are common to the US sub-group members, including the ACL claims. As indicated, those claims fall be decided in accordance with Australian law and there is a significant public policy reason for them to be litigated in an Australian court.
To those matters must be added the consideration that the US sub-group claims, as with the other claims in the representative proceeding, have a substantial connection with NSW. The voyage commenced and ended in Sydney. Some of the allegations of negligence concern conduct in Sydney, or conduct it is said should have occurred but did not, but had it occurred it would have been in Sydney. The lengthy particulars include that the respondents, in breach of their duties of care, failed to cancel the voyage, failed to ensure the vessel was thoroughly sanitised, failed to ask each passenger and crew member prior to boarding if they had any symptoms of COVID-19, failed to take each passenger’s and crew member’s temperature prior to boarding, failed to warn passengers prior to boarding of the risk of contracting COVID-19 on board, or alternatively failed to warn passengers prior to boarding that the respondents would not implement reasonable precautions to minimise the risk and presence of COVID-19 on board.
There is simply no respect in which the continuation of the US sub-group claims in the representative proceeding in this Court is oppressive, vexatious or an abuse of process in the sense used in the authorities. The claim that this Court is a clearly inappropriate forum for the US sub-group claims must fail.
J.2 The UK sub-group
Insofar as the UK sub-group members’ claims are concerned, the analysis of the role of several of the factors is the same as it is in relation to the US sub-group members’ claims. That is to say, medical evidence being in the UK is a weak connecting factor, the proper law of the contract being English law is also a weak connecting factor, the system of law governing the tort claims is at this stage a neutral factor, and the fact of the claims relating to some 1,800 passengers will proceed in the representative proceeding in this Court is a very strong connecting factor to this Court which weighs strongly against any conclusion that this Court is a clearly inappropriate forum for the UK sub-group members’ claims. Save in respect of considerations relating to the class action waiver clause, the reasoning as to why there are strong reasons not to enforce the US exclusive jurisdiction clause for the most part also counts against the UK sub-group claims being stayed.
Dealing with the other factors raised by the respondents, I am prepared to assume for present purposes that the UK sub-group members’ tort claims will all be fully answered by the provisions of the Athens Convention. It is not suggested that this Court will have any particular difficulty applying the provisions of the Athens Convention. There is therefore little apparent reason why the issues in relation to the Athens Convention should not be decided as common issues to the UK sub-group members in the representative proceeding. Nevertheless, given that the application of the Athens Convention would be by operation of the parties’ choice of English law as the proper law of the contract, I accept that it is a connecting factor to England, but it is a weak factor.
The non-exclusive jurisdiction clauses are essentially neutral. The fact that they are non-exclusive demonstrates that it is left open to the parties to litigate other than in the UK.
There is some debate between the experts on English law as to the extent to which causes of action are available in England that are equivalent to, or at least very similar to, the ACL causes of action that are asserted in the proceeding in this Court. But even assuming in the respondents’ favour that there are equivalent causes of action in England, there is no relevant oppression, or injustice, in the UK sub-group members pursuing ACL claims in this Court. Moreover, the fact that they can do that by means of representative proceedings in concert with, as I have said, the claims relating to some 1,800 other passengers (excluding the US sub-group members), is a legitimate juridical advantage that they enjoy in this Court. The denial of the convenience, if there be any, to the respondents for the UK sub-group members to proceed in England is not such as to amount to any relevant oppression or injustice.
I turn now to the factor raised by the respondents of simultaneous proceedings in multiple jurisdictions on the basis that the UK sub-group members are eligible to benefit from EU rights relating to travel packages. The only evidence on this point is that of Mr Kimbell QC for the respondents. He was asked, on the assumption that the law of England and Wales is the applicable law, what claims a plaintiff could bring in the courts of England and Wales for loss arising out of a voyage on a cruise ship. Mr Kimbell QC identified four main potential types of claim, one of which is a claim under the Athens Convention and another of which is a claim under the Package Travel and Linked Travel Arrangements Regulations 2018 (UK) (PTR 2018). I have already explained above that this Court is able to determine the issues arising under the Athens Convention as common issues to the UK sub-group. Determination of those issues in this Court would foreclose any additional proceedings brought in the UK on the basis of that Convention.
As for PTR 2018, those regulations are the latest version of regulations introduced first in 1992 (PTR 1992). The PTR 1992 originated in a European Directive the aim of which was the harmonisation of consumer protection in relation to package holidays. The PTR 1992 and 2018 create a framework of rights for the consumer who enters into a package travel contract. Almost all of the rights and remedies provided directly to consumers in the PTR 1992/2018 are implied into the holiday contract by the regulations.
The applicant’s expert witness on English law, Mr Passmore QC, expressed no disagreement with Mr Kimbell QC’s identification of the PTR 2018 as the source of a possible claim or his characterisation of such a claim. There is nothing in that evidence to suggest the UK sub-group members could pursue their presently asserted claims in the representative proceeding in this Court and simultaneously or subsequently make claims under the PTR 2018 in England (or elsewhere in Europe). Presumably they would be met with an Anshun estoppel, or the English equivalent thereof, in response: Henderson v Henderson (1843) 3 Hare 100 at 115; 67 ER 313 at 319 per Sir James Wigram VC.
In any event, it seems to me to be doubtful that the respondents would have any vulnerability to claims made under PTR 2018, there being no evidence before the Court showing that either or both of them meet the definition of an “organiser” within the meaning of the regulations. Importantly, that requires that the respondents offer “packages” for sale.
In the circumstances, I do not consider that there is any foundation in the evidence to the submission that the possibility of claims under the PTR 2018 leads to a risk of simultaneous proceedings in multiple jurisdictions, at least in respect of these respondents. The same must be true of the other causes of action available in English law. If those claims are going to asserted on behalf of UK sub-group members, that can be done as common questions in this proceeding, which has not thus far been done – Mrs Wright’s points of claim place no reliance on them. It is not realistic that they might be able to assert them independently in other proceedings when they arise out of the same facts. I therefore do not see the risk of multiple simultaneous proceedings that the respondents advert to.
In the circumstances, the respondents’ claim that this Court is a clearly inappropriate forum for the UK sub-group members’ claims is not established and must be rejected.
K. DISPOSITION
With reference to the relief sought by the respondents in their interlocutory application, I have concluded as follows:
(1)The claims advanced by Mr Ho should not be stayed on any of the identified grounds, although if the class action waiver clause was incorporated (contrary to what I have found) and it is enforceable in Australia (also contrary to what I have concluded), it would form a proper basis to either exclude Mr Ho’s claim from the proceeding or to amend the group definition to exclude those bound by the clause under s 33ZF of the FCA Act.
(2)The claims of the US sub-group members should not be stayed, in particular because it is not possible or appropriate to decide that question as a common question. That is because whether or not the relevant clauses from the US terms and conditions are incorporated depends on the circumstances of contract formation in each case, although on the evidence thus far it seems unlikely that the US terms and conditions formed part of any passage contracts. But even if they did, for the same reasons as in relation to Mr Ho, there would be strong reasons not to stay the claims.
(3)The decision on questions (1) and (2) should not bind all US sub-group members.
(4)It is not appropriate at this stage to decide which system of law governs the claims in negligence brought by Mr Ho or by the rest of the US sub-group members.
(5)The claims advanced by Mrs Wright should not be stayed on any of the identified grounds.
(6)The claims of the other UK sub-group members should also not be stayed on any of the identified grounds.
(7)Since there is no controversy about whether the other UK sub-group members are bound by the UK terms and conditions and my conclusion on refusing a stay assumes the incorporation of the UK terms and conditions in the passage contracts of the UK sub-group members, the refusal of the application to stay the UK sub-group members’ claims should be binding on all UK sub-group members (subject to what I say below about the appointment of Mrs Wright as the UK sub-group representative).
(8)It is not appropriate at this stage to decide what system of law governs the claims in negligence brought by Mrs Wright or the other UK sub-group members.
The remaining relief sought by the respondents is whether the US and UK sub-groups should be formally established and whether Mr Ho and Mrs Wright should be appointed as their respective representative parties. I did not receive submissions on these issues which turn, at least to some extent, on the conclusions reached on the other relief that the respondents have sought. In the circumstances, I propose to hear from the parties on the relief that should be ordered.

I certify that the preceding three hundred and seventy-four (374) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Stewart.
Associate:
Dated: 10 September 2021

File number:	NSD 806 of 2020
Judgment of:	STEWART J
Date of judgment:	10 September 2021
Catchwords:	PRIVATE INTERNATIONAL LAW – application for stay of sub-group members’ claims in representative proceeding alleging contraventions of Australian Consumer Law (ACL) ss 18, 29, 60 and 61 – where exclusive jurisdiction clause requires claims to be brought in the US District Courts for the Central District of California in Los Angeles – whether there are “strong reasons” to refuse the grant of stay – where proceedings commenced as a representative proceeding under Pt IVA of the Federal Court of Australia Act 1976 (FCA Act) – where not all members of class subject to exclusive jurisdiction clause – where clause appears in consumer contract of adhesion – whether US District Courts have and would exercise jurisdiction over ACL claims – if the exclusive jurisdiction clause does not apply, whether the Federal Court is a clearly inappropriate forum CONTRACTS – incorporation of terms – whether carrier’s terms and conditions were incorporated into contract of carriage – where link provided in booking email to webpage that displayed multiple different sets of terms – where booking email received over one month after booking was concluded – whether there was reasonable notice of unusual terms CONSUMER LAW – unfair terms – whether exclusive jurisdiction clause and class action waiver clause in a consumer contract of adhesion are unfair terms – whether reliance on class action waiver clause is unconscionable PRACTICE AND PROCEDURE – representative proceedings – application for stay of proceedings on basis of class action waiver clause – whether unenforceable by reason of being contrary to Pt IVA of the FCA Act – consideration of whether a stay would be an appropriate remedy PRACTICE AND PROCEDURE – representative proceedings – whether interlocutory application raises common questions SHIPPING AND NAVIGATION – consideration of applicable law for torts occurring on the high seas STATUTORY INTERPRETATION – whether s 138 of the Competition and Consumer Act 2010 (Cth) requires the Federal Court to exercise jurisdiction properly invoked in respect of ACL claims
Legislation:	Carriage of Goods by Sea Act 1991 (Cth) ss 8, 11, 20, Sch 1A Art 3 r 8 Competition and Consumer Act 2010 (Cth) Pt IV, ss 4, 5, 86, 138, 138A, 138B, 138E ; Sch 2 (Australian Consumer Law) ss 18, 21, 23, 24, 25, 29, 60, 61, 67, 236, 237 Corporations Act 2001 (Cth) ss 58AA, 232, 233, 1317H Evidence Act 1995 (Cth) s 75 Federal Court of Australia Act 1976 (Cth) ss 23, 33C, 33E, 33H, 33J, 33K, 33L, 33M, 33N, 33P, 33Q, 33R, 33S, 33ZB, 33ZF, Pt IVA Federal Court Rules 2011 (Cth) rr 9.34, 30.01 Insurance Contracts Act 1984 (Cth) ss 8, 52, 54 Sea-Carriage of Goods Act 1924 (Cth) (repealed) s 9(2) Trade Practices Act 1974 (Cth) (repealed) ss 51AC, 52, 67, 68, 86, 87 Trans-Tasman Proceedings Act 2010 (Cth) s 19 Contracts Review Act 1980 (NSW) ss 7, 17 Fair Trading Act 1987 (NSW) Pts 3, 6A Supreme Court Act 1986 (Vic) s 33KA Package Travel and Linked Travel Arrangements Regulations 2018 (UK) United States Code, Title 28 §§1333, 1367 Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, 1974 done at Athens on 13 December 1974, as amended by the Protocol amending it done at London on 1 November 2002 International Convention for the Unification of Certain Rules of Law relating to Bills of Lading done at Brussels on 25 August 1924 and the Protocol amending it done at Brussels on 23 February 1968
Cases cited:	A Nelson & Co Ltd v Martin & Pleasance Pty Ltd (Stay Application) [2021] FCA 754 ACCC v Chrisco Hampers Australia Ltd [2015] FCA 1204; 239 FCR 33 ACCC v CLA Trading Pty Ltd [2016] FCA 377; ATPR 42‑517 ACCC v Valve Corp (No 3) [2016] FCA 196; 337 ALR 647 Agro Co of Canada Ltd v The Ship “Regal Scout” (1983) 148 DLR (3d) 412 Akai Pty Ltd v People’s Insurance Co Ltd (1995) 126 FLR 204 at 227; 8 ANZ Ins Cas 61-254 Akai Pty Ltd v The People’s Insurance Co Ltd [1996] HCA 39; 188 CLR 418 Amaca Pty Ltd v Frost[2006] NSWCA 173; 67 NSWLR 635 Archer v Carnival Corporation and PLC WL 6260003 (CD Cal, 2020) Asirifi-Otchere v Swann Insurance (Aust) Pty Ltd (No 2) [2020] FCA 1355; 148 ACSR 14 AT&T Mobility LLC v Concepcion 563 US 333 (2011) Australia Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd [2018] NSWSC 1236 Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd [2019] NSWCA 61; 99 NSWLR 419 Bahrampour v Lambert 356 F 3d 969 (9th Cir 2004) Baltic Shipping Co v Dillon (The Mikhail Lermontov) (1991) 22 NSWLR 1 BMW Australia Ltd v Brewster [2019] HCA 45; 374 ALR 627 Bonython v Commonwealth [1950] UKPCHCA 3; 81 CLR 486 Bray v F Hoffman-La Roche Ltd [2002] FCA 243; 118 FCR 1 The Bremen v Zapata Off-Shore Co 407 US 1 (1972) Burke v LFOT Pty Ltd [2002] HCA 17; 209 CLR 282 BVT20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 222; 385 ALR 286 Carnegie-Mellon University v Cohill, Judge, United States District Court for the Western District of Pennsylvania 484 US 343 (1988) Carnival Cruise Lines, Inc v Shute 499 US 585 (1991) Carter v Rent-A-Center, Inc 718 F App 502 (9th Cir, 2017) Clarke Equipment Australia Ltd v Covcat Pty Ltd [1987] FCA 96; 71 ALR 367 Commonwealth Bank of Australia v White [1999] VSC 262; [1999] 2 VR 681 Compagnie des Messageries Maritimes v Wilson [1954] HCA 62; 94 CLR 577 Crabtree-Vickers Pty Ltd v Australian Direct Mail Advertising & Addressing Company Pty Ltd [1975] HCA 49; 133 CLR 72 CSR Ltd v Cigna Insurance Australia Ltd [1997] HCA 33; 189 CLR 345 DA Technology Australia Pty Ltd v Discrete Logic Inc [1994] FCA 101 DA Technology Australia Pty Ltd v Discreet Logic Inc (1994) 28 IPR 578 Deiro v American Airlines, Inc 816 F 2d 1360 (9th Cir, 1987) DeLuca v Royal Caribbean Cruises, Ltd 244 F Supp 3d 1342 (SD Fla, 2017) Dialogue Consulting Pty Ltd v Instagram, Inc [2020] FCA 1846 Dillon v RBS Group (Australia) Pty Ltd [2017] FCA 896; 252 FCR 150 Re Douglas Webber Events Pty Ltd [2014] NSWSC 1544; 291 FLR 173 Douez v Facebook Inc 2017 SCC 33; [2017] 1 SCR 751 Dyzcynski v Gibson [2020] FCA 120; 381 ALR 1 East Asia Company Ltd v PT Satria Tirtatama Energindo (Bermuda) [2019] UKPC 30; [2020] 2 All ER 294 eBay International AG v Creative Festival Entertainment Pty Ltd [2006] FCA 1768; 170 FCR 450 The Eleftheria [1970] P 94 Epic Games, Inc v Apple Inc (Stay Application) [2021] FCA 338 Epic Games, Inc v Apple Inc [2021] FCAFC 122 Ethicon Sàrl v Gill [2018] FCAFC 137; 264 FCR 394 Executive Software North America, Inc v United States District Court for Central District of California 24 F 3d 1545 (9th Cir 1994) Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89 Faxtech Pty Ltd v ITL Optronics Ltd [2011] FCA 1320 The Fehmarn [1958] 1 WLR 159 Global Partners Fund Ltd v Babcock & Brown Ltd (in liq) [2010] NSWCA 196; 79 ACSR 383 Gonzalez v Agoda Co Pte Ltd [2017] NSWSC 1133 Henderson v Henderson (1843) 3 Hare 100; 67 ER 313 Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd [1988] FCA 42; 39 FCR 546 Henry v Henry [1996] HCA 51; 185 CLR 571 Hicks v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 757 The Hollandia [1983] 1 AC 565 Hollingworth v Southern Ferries Ltd (The Eagle) [1977] 2 Lloyd’s Rep 70 Home Ice Cream Pty Ltd v McNabb Technologies LLC [2018] FCA 1033 Home Ice Cream Pty Ltd v McNabb Technologies LLC (No 2) [2018] FCA 1093 Hope v Bathurst City Council [1980] HCA 16; 144 CLR 1 Huddart Parker Ltd v The Ship “Mill Hill” [1950] HCA 43; 81 CLR 502 Incitec Ltd v Alkimos Shipping Corporation [2004] FCA 698; 138 FCR 496 Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd [1989] QB 433 Jetstar Airways Pty Ltd v Free [2008] VSC 539 John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; 203 CLR 503 Liberty Mutual Insurance Company v Icon Co (NSW) Pty Ltd [2021] FCAFC 126 Mobil Oil Australia Pty Ltd v Victoria [2002] HCA 27; 211 CLR 1 Nicola v Ideal Image Development Corporation Inc [2009] FCA 1177; 215 FCR 76 Oltman v Holland America Line, Inc 538 F 3d 1271 (9th Cir, 2008) Perera v GetSwift Ltd [2018] FCAFC 202; 263 FCR 92 Pompey Industrie v ECU-Line NV 2003 SCC 27; [2003] 1 SCR 450 Price v Spoor [2021] HCA 20 Public Service Association of South Australia v Federated Clerks’ Union of Australia [1991] HCA 33; 173 CLR 132 Puttick v Tenon [2008] HCA 54; 238 CLR 265 Quinlan v Safe International Försäkrings AB [2005] FCA 1362 P Dawson Nominees Pty Ltd v Brookfield Multiplex Ltd (No 2) [2010] FCA 176 Pioneer Concrete Services Ltd v Galli [1985] VR 675 Regie Nationale des Usines Renault SA v Zhang [2002] HCA 10; 210 CLR 491 Royal Caribbean Cruises Ltd v Browitt [2021] FCA 653 Smith, Valentino & Smith, Inc v Superior Court of Los Angeles County 17 Cal 3d 491 (1976) Société Nationale Industrielle Aerospatiale v Lee Kui Jak [1987] AC 871 Sohio Supply Co v Gatoil (USA) Inc [1989] 1 Lloyd’s Rep 588 Spiliada Maritime Corporation v Cansulex Ltd [1987] 1 AC 460 Thiel v Federal Commissioner of Taxation [1990] HCA 37; 171 CLR 338 Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163 Timbercorp Finance Pty Ltd (in liq) v Collins [2016] HCA 44; 259 CLR 212 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; 219 CLR 165 Trina Solar (US), Inc v Jasmin Solar Pty Ltd [2017] FCAFC 6; 247 FCR 1 Oceanic Sun Line Special Shipping Co Inc v Fay [1988] HCA 32; 165 CLR 197 Uber Technologies Inc v Heller 2020 SCC 16 Valve Corporation v ACCC [2017] FCAFC 224; 258 FCR 190 Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 Wallis v Princess Cruises, Inc 306 F 3d 827 (9th Cir, 2002) Westfield Management Ltd v AMP Capital Property Nominees Ltd [2012] HCA 54; 247 CLR 129 Australian Law Reform Commission, Grouped Proceedings in the Federal Court (Report No 46, 1988) Davies M, Bell AS, Brereton PLG and Douglas M, Nygh’s Conflict of Laws in Australia (10th ed, LexisNexis Butterworths, 2020)
Division:	General Division
Registry:	New South Wales
National Practice Area:	Other Federal Jurisdiction
Number of paragraphs:	374
Date of last submission/s:	13 July 2021
Date of hearing:	1-2, 9 July 2021
Counsel for the Applicant:	I Pike SC, R May and D Farinha
Solicitor for the Applicant:	Shine Lawyers Pty Ltd
Counsel for the Respondents:	D McLure SC, G O’Mahoney, A Reid and H Cooper (written submissions also by T Prince)
Solicitor for the Respondents:	Clyde & Co

ORDER MADE BY:	STEWART J
DATE OF ORDER:	10 SEPTEMBER 2021

A. INTRODUCTION	[1]
B. THE PRESENT INTERLOCUTORY APPLICATION	[17]
C. INCORPORATION OF THE RELEVANT CLAUSES	[25]
C.1 The applicable principles	[31]
C.2 The Princess booking arrangements	[33]
C.3 Mr Ho’s contract	[41]
C.4 The Princess “Cruise Personalizer” webpage	[53]
C.5 Whose agent was the travel agent?	[61]
C.6 Analysis and conclusion	[68]
D. IS INCORPORATION OF THE U.S. CLAUSES A COMMON QUESTION?	[90]
E. ARE THE RELEVANT U.S. CLAUSES ENFORCEABLE?	[98]
E.1 Is the class action waiver clause contrary to Pt IVA of the FCA Act?	[102]
E.2 Are the clauses unfair under Pt 2-3 of the ACL?	[122]
*E.2.1 The exclusive jurisdiction clause*	[134]
*E.2.2 The class action waiver clause*	[138]
E.3 Is reliance on the class action waiver clause unconscionable?	[146]
E.4 Are the clauses unjust under s 7 of the CRA?	[155]
F. THE BASES ON WHICH THE RESPONDENTS SEEK A STAY OF THE U.S. AND U.K. SUB-GROUPS’ CLAIMS	[159]
F.1 Introduction	[159]
F.2 Exclusive jurisdiction clause: applicable principles	[165]
*F.2.1 The rule in Akai*	[165]
*F.2.2 The effect of Australian Health v Hive*	[175]
F.3 Class action waiver clause	[195]
F.4 Clearly inappropriate forum	[196]
G. IS A STAY PROHIBITED BY SECTION 138 OF THE COMPETITION AND CONSUMER ACT?	[208]
G.1 Introduction	[208]
G.2 Public Service Association (1991)	[220]
G.3 DA Technology (1994)	[223]
G.4 Akai (1996)	[226]
G.5 Nicola (2009)	[239]
G.6 Faxtech (2011)	[243]
G.7 Douglas Webber (2014)	[246]
G.8 Home Ice Cream (2018)	[251]
G.9 Epic v Apple (2021)	[261]
G.10 Analysis and conclusion	[270]
H. APPLICABLE LAW FOR THE NEGLIGENCE CLAIMS	[278]
I. CONSIDERATION OF A STAY IF THE RELEVANT U.S. CLAUSES WERE INCORPORATED AND ENFORCEABLE	[289]
I.1 The exclusive jurisdiction clause	[290]
*I.1.1 Are the claims available in the US Court?*	[291]
The experts	[291]
The choice of law mechanism	[297]
The jurisdiction of US federal courts	[299]
The same case or controversy (28 USC §1367(a))	[304]
Novel or complex issues of law (28 USC §1367(c)(1))	[308]
Substantially predominate over claims in the original jurisdiction (28 USC §1367(c)(2))	[316]
Compelling reasons for declining jurisdiction (28 USC §1367(c)(4))	[320]
Summary of conclusions on US law	[326]
*I.1.2 Should the US sub-group claims be stayed on Akai grounds?*	[331]
I.2 The class action waiver clause	[339]
J. CLEARLY INAPPROPRIATE FORUM	[349]
J.1 The US sub-group	[353]
J.2 The UK sub-group	[360]
K. DISPOSITION	[370]