Federal Court of Australia
Federal Court of Australia
Karpik v Carnival plc (The Ruby Princess) (Stay Application) [2021] FCA 1082 File number: NSD 806 of 2020
Judgment of: STEWART J
Date of judgment: 10 September 2021
Catchwords: PRIVATE INTERNATIONAL LAW – application for stay of sub-group members' claims in representative proceeding alleging contraventions of Australian Consumer Law (ACL) ss 18, 29, 60 and 61 – where exclusive jurisdiction clause requires claims to be brought in the US District Courts for the Central District of California in Los Angeles – whether there are "strong reasons" to refuse the grant of stay – where proceedings commenced as a representative proceeding under Pt IVA of the Federal Court of Australia Act 1976 (FCA Act) – where not all members of class subject to exclusive jurisdiction clause – where clause appears in consumer contract of adhesion – whether US District Courts have and would exercise jurisdiction over ACL claims – if the exclusive jurisdiction clause does not apply, whether the Federal Court is a clearly inappropriate forum CONTRACTS – incorporation of terms – whether carrier's terms and conditions were incorporated into contract of carriage – where link provided in booking email to webpage that displayed multiple different sets of terms – where booking email received over one month after booking was concluded – whether there was reasonable notice of unusual terms CONSUMER LAW – unfair terms – whether exclusive jurisdiction clause and class action waiver clause in a consumer contract of adhesion are unfair terms – whether reliance on class action waiver clause is unconscionable PRACTICE AND PROCEDURE – representative proceedings – application for stay of proceedings on basis of class action waiver clause – whether unenforceable by reason of being contrary to Pt IVA of the FCA Act – consideration of whether a stay would be an appropriate remedy PRACTICE AND PROCEDURE – representative proceedings – whether interlocutory application raises common questions SHIPPING AND NAVIGATION – consideration of applicable law for torts occurring on the high seas STATUTORY INTERPRETATION – whether s 138 of the Competition and Consumer Act 2010 (Cth) requires the Federal Court to exercise jurisdiction properly invoked in respect of ACL claims
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