Karpik v Carnival plc [2023] HCA 39

Karpik v Carnival plc [2023] HCA 39

Section 23 of the ACL, read with s 5(1)(c) and (g) of the Competition and Consumer Act 2010 (Cth), applies to Mr Ho's contract because Princess was carrying on business in Australia; the class action waiver clause is void for being an unfair term under s 23, as it creates a significant imbalance, is not reasonably necessary to protect Princess' interests, and causes detriment to consumers; there are strong reasons not to enforce the exclusive jurisdiction clause, given the juridical disadvantage and risk of fractured litigation; but the class action waiver clause is not separately void under Pt IVA of the FCA Act.

Parties
Appellant: Susan Karpik; Respondents: Carnival plc & Anor
Jurisdiction
Australia
Judgment Date
06 December 2023
Procedural Posture
Appeal / High Court Appeal From the Full Court of the Federal Court of Australia
Outcome
Appeal allowed with costs.
Legal Topics
Extraterritorial Application of Australian Consumer Law, Unfair Contract Terms, Class Action Waiver Clauses, Jurisdiction and Exclusive Jurisdiction Clauses, Representative Proceedings (class Actions), Interpretation of Competition and Consumer Act 2010 (cth)
Consumer Law Private International Law Civil Procedure Extraterritorial Application of Australian Consumer Law Unfair Contract Terms Class Action Waiver Clauses Jurisdiction and Exclusive Jurisdiction Clauses Representative Proceedings (class Actions) +1 more

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Parties

Susan Karpik

Appellant

Carnival plc & Anor

Respondents

Procedural Posture

Appeal / High Court Appeal From the Full Court of the Federal Court of Australia

Legal Issues

  1. 1 Does s 23 of the Australian Consumer Law (ACL) apply extraterritorially to a contract made outside Australia by a company carrying on business in Australia?
  2. 2 Is the class action waiver clause in the contract void as an unfair term under s 23 of the ACL?
  3. 3 Is the class action waiver clause unenforceable by reason of Pt IVA of the Federal Court of Australia Act 1976 (Cth)?

Ratio Decidendi

Section 23 of the ACL, read with s 5(1)(c) and (g) of the Competition and Consumer Act 2010 (Cth), applies to Mr Ho's contract because Princess was carrying on business in Australia; the class action waiver clause is void for being an unfair term under s 23, as it creates a significant imbalance, is not reasonably necessary to protect Princess' interests, and causes detriment to consumers; there are strong reasons not to enforce the exclusive jurisdiction clause, given the juridical disadvantage and risk of fractured litigation; but the class action waiver clause is not separately void under Pt IVA of the FCA Act.

Court Disposition

Appeal allowed with costs.

Orders

  • Appeal allowed with costs.
  • Set aside paragraphs 2(b), 3 and 4 of the orders made by the Full Court of the Federal Court of Australia on 2 September 2022.