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

Federal Court of Australia

Carnival plc v Karpik (The Ruby Princess) [2022] FCAFC 149 Appeal from: Karpik v Carnival plc (The Ruby Princess) (Stay Application) [2021] FCA 1082

File number: NSD 1033 of 2021

Judgment of: ALLSOP CJ, RARES AND DERRINGTON JJ

Date of judgment: 2 September 2022

Catchwords: CONTRACTS – contract formation – nature of agency relationship – extent of agent's authority – imputation of agent's knowledge – incorporation of terms – relevance of so-called ticket cases – offer and acceptance – whether there was reasonable notice of terms of contract of passage including the exclusive jurisdiction clause – whether exclusive jurisdiction clause was onerous or unusual CONSUMER LAW – whether exclusive jurisdiction clause or class action waiver clause are unfair terms within the meaning of s 23 of the Australian Consumer Law – extraterritorial application of s 23 – whether s 23 is a mandatory law of the forum REPRESENTATIVE PROCEEDINGS – whether class action waiver clause unenforceable – whether class action waiver clause is contrary to Pt IVA of the Federal Court of Australia Act 1976 (Cth) PRIVATE INTERNATIONAL LAW – enforcement of exclusive jurisdiction clause – whether class action waiver clause is contrary to public policy – whether there are any discretionary reasons to grant a stay of the proceedings

Legislation: Constitution (Commonwealth of Australia) ss 51(i), 51(xx), 76(iii) Acts Interpretation Act 1901 (Cth) ss 15A, 15AA, 21(1)(b) Admiralty Act 1988 (Cth) s 4(3) Australian Securities and Investments Commission Act 2001 (Cth) s 12BF Carriage of Goods by Sea Act 1991 (Cth) s 11(1) Competition and Consumer Act 2010 (Cth) ss 2, 4, 5(1)(g) Competition and Consumer Act 2010 (Cth) Schedule 2 (Australian Consumer Law) ss 18, 20, 21, 23–25, 29, 30, 32–37, 44, 51–53, 67 Corporations Act 2001 (Cth) Federal Court of Australia Act 1976 (Cth) Pt IVA, ss 33C, 33E, 33H, 33J, 33K, 33N–33S, 33X, 33Y Federal Court of Australia Amendment Bill 1991 (Cth) Federal Court Rules 2011 (Cth) r 30.01 Insurance Contracts Act 1984 (Cth) s 8 Judiciary Act 1903 (Cth) s 78B Trade Practices Act 1974 (Cth) ss 4, 52 Trade Practices Amendment Bill 1977 (Cth) Contracts Review Act 1980 (NSW) ss 7(1), 17(3) Fair Trading Act 1999 (Vic) Interpretation Act 1987 (NSW) s 12(1)(b) Business Practices and Consumer Protection Act 2004 (BC) Class Proceedings Act 1996 (BC) s 4 Constitution (United States of America) Art 3(2)