Karpik v Carnival plc

The case of *Karpik v Carnival plc* concerned a dispute brought by Ms Karpik, a consumer, against Carnival plc, a cruise line company. Ms Karpik alleged that terms within her cruise passage contract were unfair under the Australian Consumer Law (ACL). The contract was made outside Australia, but Carnival conducted business within Australia, marketing and selling cruises. The contract was a standard form contract containing an exclusive jurisdiction clause and a class action waiver clause. Ms Karpik sought to bring a representative action in Australia.

The High Court of Australia was required to determine several key legal issues. These included whether section 23 of the ACL, which renders unfair terms in consumer contracts void, applied extraterritorially to a contract made outside Australia, given that the company carried on business in Australia. The Court also had to consider whether section 5(1)(g) of the *Competition and Consumer Act 2010* (Cth) extended the application of section 23 of the ACL to such a contract, and if any additional territorial connection was necessary. Furthermore, the Court had to determine whether the class action waiver clause was an unfair term under section 23 of the ACL and therefore void, and whether it was contrary to Part IVA of the *Federal Court of Australia Act 1976* (Cth) and thus unenforceable. The Court also considered whether to grant a stay of proceedings based on the exclusive jurisdiction clause.

The High Court allowed the appeal, setting aside parts of the orders made by the Full Court of the Federal Court. The Court reasoned that section 5(1)(g) of the *Competition and Consumer Act 2010* (Cth) was sufficient to extend the application of section 23 of the ACL to the contract in question, even though it was made outside Australia. The Court found that the class action waiver clause was an unfair term under section 23 of the ACL and was void. The Court also determined that the clause was unenforceable as it was contrary to the legislative intent of Part IVA of the *Federal Court of Australia Act 1976* (Cth) regarding representative proceedings. Consequently, the Court found strong reasons not to grant a stay of proceedings.

The appeal was allowed with costs. The orders of the Full Court of the Federal Court were set aside, and the respondents were ordered to pay the appellant's costs of the appeal.