Carnival plc v Karpik (The Ruby Princess) [2022] FCAFC 149

Carnival plc v Karpik (The Ruby Princess) [2022] FCAFC 149

The Full Court found that the US Terms and Conditions, including the exclusive jurisdiction clause and class action waiver clause, were properly incorporated into Mr Ho's passage contract via his travel agent acting as agent. Princess took reasonable steps to bring these terms to Mr Ho's attention, and Mr Ho either objectively accepted them by proceeding or explicitly accepted them via the Cruise Personaliser portal. The class action waiver clause was not unfair within the meaning of s 23 of the ACL, considering that it did not preclude access to justice or cause significant imbalance or detriment, and Princess had legitimate interests in its inclusion. Section 23 of the ACL did not apply...

Jurisdiction
Australia
Judgment Date
02 September 2022
Procedural Posture
Appeal / Appellate Judgment Following Hearing of an Appeal From an Interlocutory Decision on a Stay Application in Class Action Proceedings.
Outcome
Appeal allowed; stay granted for Mr Ho's claim; remitted for further consideration regarding other class members; costs ordered in favour of appellants.
Legal Topics
['contract Formation' 'agency' 'incorporation of Contractual Terms' 'exclusive Jurisdiction Clauses' 'class Action Waiver Clauses' 'unfair Contract Terms Under Australian Consumer Law' 'extraterritorial Application of Statutes' 'representative Proceedings (class Actions)' 'public Policy and Enforceability of Contractual Terms']
['contract Law' 'consumer Law' 'private International Law' 'civil Procedure'] ['contract Formation' 'agency' 'incorporation of Contractual Terms' 'exclusive Jurisdiction Clauses' 'class Action Waiver Clauses' 'unfair Contract Terms Under Australian Consumer Law' 'extraterritorial Application of Statutes' 'representative Proceedings (class Actions)' 'public Policy and Enforceability of Contractual Terms']

Case Brief

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Procedural Posture

Appeal / Appellate Judgment Following Hearing of an Appeal From an Interlocutory Decision on a Stay Application in Class Action Proceedings.

Legal Issues

  1. 1 ['Whether the US Terms and Conditions, including exclusive jurisdiction and class action waiver clauses, were incorporated into the passage contract between Mr Ho and Princess/Carnival.' 'Whether the class action waiver clause is unenforceable as unfair under s 23 of the Australian Consumer Law or contrary to Pt IVA of the Federal Court of Australia Act 1976 (Cth).' "Whether the exclusive jurisdiction clause should be enforced, resulting in a stay of Mr Ho's claims in Australia." 'The extraterritorial scope of s 23 of the ACL and its application to foreign-governed consumer contracts.']

Ratio Decidendi

The Full Court found that the US Terms and Conditions, including the exclusive jurisdiction clause and class action waiver clause, were properly incorporated into Mr Ho's passage contract via his travel agent acting as agent. Princess took reasonable steps to bring these terms to Mr Ho's attention, and Mr Ho either objectively accepted them by proceeding or explicitly accepted them via the Cruise Personaliser portal. The class action waiver clause was not unfair within the meaning of s 23 of the ACL, considering that it did not preclude access to justice or cause significant imbalance or detriment, and Princess had legitimate interests in its inclusion. Section 23 of the ACL did not apply...

Court Disposition

Appeal allowed; stay granted for Mr Ho's claim; remitted for further consideration regarding other class members; costs ordered in favour of appellants.

Orders

  • ['The appeal is allowed.' 'Order 1 of the orders of the Federal Court of Australia made on 20 September 2021 is set aside and, in lieu, it is ordered that: (a) It is declared that the passage contract between Mr Patrick Ho and the respondents for the voyage on Ruby Princess was subject to the US Terms and...