Karpik v Carnival plc (The Ruby Princess) (Amendment Application) [2022] FCA 1232

Karpik v Carnival plc (The Ruby Princess) (Amendment Application) [2022] FCA 1232

Leave to amend was refused for all proposed amendments except the proposed paragraph 176(b)(ii) because the s 61(3) amendment was non-responsive to the applicant's pleaded case and disclosed no reasonable defence, several proposed s 267(1)(c) amendments either wrongly sought to place an unresolved onus on the applicant, introduced complex new factual issues likely to require adjournment, or were bad in law, and the very late timing of the application would cause prejudice and disrupt the orderly conduct of the trial. The only permissible amendment concerned an uncontested factual matter, the Australian government's 15 March 2020 closure of borders to cruise ships not already en route to...

Jurisdiction
Australia
Judgment Date
14 October 2022
Procedural Posture
Class Action Involving Negligence and Australian Consumer Law Claims Arising Out of the Ruby Princess Voyage RU2007 / Respondents' Interlocutory Application to Amend Their Defence at the Commencement of the Trial
Outcome
The respondents were granted leave only to amend paragraph 176 of their defence to plead that any failure to comply with the guarantees occurred only because of the Australian government's 15 March 2020 act closing the borders to cruise ships not already en route to Australia; the interlocutory application was...
Legal Topics
['leave to Amend Defence' 'late Amendment at Trial' 'australian Consumer Law Consumer Guarantees' 'onus of Proof Under Ss 61(3) and 267(1)(c) of the Australian Consumer Law' 'prejudice and Adjournment' 'pleadings']
['practice and Procedure' 'consumer Law' 'civil Procedure'] ['leave to Amend Defence' 'late Amendment at Trial' 'australian Consumer Law Consumer Guarantees' 'onus of Proof Under Ss 61(3) and 267(1)(c) of the Australian Consumer Law' 'prejudice and Adjournment' 'pleadings']

Case Brief

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Procedural Posture

Class Action Involving Negligence and Australian Consumer Law Claims Arising Out of the Ruby Princess Voyage RU2007 / Respondents' Interlocutory Application to Amend Their Defence at the Commencement of the Trial

Legal Issues

  1. 1 ['Whether the respondents should have leave at the commencement of the trial to amend their defence to plead reliance on s 61(3) and s 267(1)(c) of the Australian Consumer Law.' "Whether the proposed s 61(3) pleading was responsive to the applicant's pleaded purpose and result guarantee claims." 'Whether proposed amendments concerning s 267(1)(c) would introduce complex new factual issues requiring investigation and likely adjournment.' "Whether discretionary considerations, including prejudice, delay and the Aon factors, warranted refusal of the late amendments except for the proposed pleading concerning the Australian government's 15 March 2020 border closure."]

Ratio Decidendi

Leave to amend was refused for all proposed amendments except the proposed paragraph 176(b)(ii) because the s 61(3) amendment was non-responsive to the applicant's pleaded case and disclosed no reasonable defence, several proposed s 267(1)(c) amendments either wrongly sought to place an unresolved onus on the applicant, introduced complex new factual issues likely to require adjournment, or were bad in law, and the very late timing of the application would cause prejudice and disrupt the orderly conduct of the trial. The only permissible amendment concerned an uncontested factual matter, the Australian government's 15 March 2020 closure of borders to cruise ships not already en route to...

Court Disposition

The respondents were granted leave only to amend paragraph 176 of their defence to plead that any failure to comply with the guarantees occurred only because of the Australian government's 15 March 2020 act closing the borders to cruise ships not already en route to Australia; the interlocutory application was...

Orders

  • ['The respondents have leave to amend paragraph 176 of their defence by pleading that any failure to comply with the guarantees as alleged occurred only because of the act of the Australian government on 15 March 2020 to close the borders to any cruise ships that are not already en route to Australia.' 'The...