[1996] HCA 51
L'Estrange v Graucob [1934] 2 KB 294
Oceanic Sun Line Shipping Company Inc v Fay (1988) 165 CLR 197
[1988] HCA 32
Piatek v Piatek (2010) 245 FLR 137
Puttick v Tenon Ltd (2008) 238 CLR 265
[2008] HCA 54
Smith v South Wales Switchgear Ltd [1978] 1 All ER 18
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165
Source
Original judgment source is linked above.
Catchwords
[1964] HCA 69
Henry v Henry (1996) 185 CLR 571[1996] HCA 51
L'Estrange v Graucob [1934] 2 KB 294
Oceanic Sun Line Shipping Company Inc v Fay (1988) 165 CLR 197[1988] HCA 32
Piatek v Piatek (2010) 245 FLR 137
Puttick v Tenon Ltd (2008) 238 CLR 265[2008] HCA 54
Smith v South Wales Switchgear Ltd [1978] 1 All ER 18
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165[2004] HCA 52
Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538
This seemingly straightforward motion of 21 July 2016 brought by Agoda Company Pte Ltd (Agoda), seeking to resist the litigation in this Court of a claim for personal injury brought by the plaintiff, Ms Gonzalez, by way of her statement of claim of 19 May 2016, on analysis gives rise to the need to resolve (as best one can at this interlocutory, indeed preliminary stage) a series of complicated and interlocking legal questions.
[3]
Background
The facts may be shortly stated, and are not complex. The following is derived from the pleadings, and from voluminous affidavit evidence placed before me. (I interpolate that one of the affidavits read before me was confidential, although made available to counsel for Ms Gonzalez. As against the possibility that the following unwittingly reveals something confidential, I shall not publish this judgment on Caselaw until counsel for Agoda has informed my associate that he is content with it. Nor shall I allow access to the file copy of this judgment to any person, except a lawyer for one of the parties, until my associate receives the identical assurance from counsel for Agoda.)
[4]
Booking
On or about 16 April 2013, Ms Gonzalez used the website of Agoda to reserve hotel accommodation for a holiday in Paris, France that she had planned with her husband. She accessed that website from her home computer in Padstow Heights, Sydney, Australia.
Agoda is a foreign company incorporated in Singapore. All of Agoda's employed staff are located in Singapore. Speaking very generally (because the correct characterisation of its business was in dispute before me), Agoda is in the business of providing accommodation at hotels around the world by way of bookings made through the internet on its website.
Ms Gonzalez followed Agoda's standard online booking process. First, she entered her desired destination (city, suburb or property name), her check-in and check-out dates, and the number of guests. She then "clicked" with her mouse the "Search" button on her computer screen. Ms Gonzalez was provided with a list of properties that matched her search criteria. When she clicked on each property in that list, the following information appeared: the type of room available; its price; photos of the room or of the overall property; the facilities provided; the customer policies of the property, and reviews of the property provided by previous guests.
Ms Gonzalez requested a booking of five nights' accommodation at the Timhotel Opera Madeleine located at 113 rue Saint Lazare in the Champs Elysees arrondissement of Paris (the hotel), commencing on 23 May 2013, for the sum of AUD $854.65 (the booking).
Agoda did not make any enquiries regarding the quality of the accommodation, or the facilities offered by the hotel, before allowing it to be listed on the website of Agoda.
In order for Ms Gonzalez to proceed with the booking, the website required her to click the "Book" button located next to the room of her choice, with the result that she progressed to the "Booking Details Page." She was required to enter her personal information on this page, including her name, email address, mobile phone number, country of residence, and any special requests.
After clicking the "Continue" button, Ms Gonzalez was taken to the "Payment Details Page." There she was required to input information for payment via credit card, including the credit card number, card type, security code and expiry date.
[5]
Injury and treatment
The claim of Ms Gonzalez is that, on the morning of 25 May 2013, she slipped and fell when exiting the shower in her hotel room, resulting in injury to her left leg and other parts of her body. She sustained fractures to the tibia (shin bone) and fibula (outer bone of the lower leg) in the vicinity of her left knee, requiring surgery in Paris and the insertion of metal work in her left knee.
The claim of Ms Gonzalez is that the shower screen in the bathroom was not correctly fitted, with the result that soapy water left the confines of the shower recess and was on the floor of the bathroom, rendering it slippery and causing her to fall.
When Ms Gonzalez was fit to fly, she returned to Sydney. Since then, she has suffered from pain and mobility problems arising from her injuries, particularly with regard to her left knee.
On 25 November 2014, an orthopaedic surgeon, Dr David Parker, removed the metal work from her left knee, and performed an arthroscopy (a small keyhole incision to inspect the joint cavity with a tiny telescope) at Royal North Shore Private Hospital, Sydney.
On 5 July 2016, Ms Gonzalez required a total left knee replacement. That operation was performed by the same doctor at the same hospital.
Ms Gonzalez claims that she has experienced ongoing pain, mental health issues, and an inability to perform her usual domestic tasks. She has also incurred medical and out-of-pocket expenses; examples of the latter are the costs of hiring a cleaning lady for heavy cleaning, and carers to assist her in looking after her autistic grandson.
[6]
The claim of Ms Gonzalez
The statement of claim of 19 May 2016 is short and orthodox. In a nutshell, it recounts the undisputed history of the matter, as I have done above.
In terms of the causes of action underpinning the claim, the statement of claim asserts that, both by way of ss 60 and 61(1) of the Competition and Consumer Act 2010 (Cth), Schedule 2 Australian Consumer Law (the ACL), and by way of terms to be implied into the contract entered into by Agoda and Ms Gonzalez, Agoda was required to exercise due care and skill in its provision to Ms Gonzalez of a hotel room of appropriate quality that was fit for purpose, in particular with regard to safe entry to, and exit from, the shower recess.
The statement of claim concludes by asserting that Agoda breached the statutory guarantees within the ACL, and the implied terms of the contract.
[7]
Orders sought
The following orders contained in the notice of motion of Agoda were pressed at the hearing before me:
1 An order pursuant to r 12.11(1)(a) of the Uniform Civil Procedure Rules 2005 (UCPR) that the Statement of Claim filed 19 May 2016 be set aside.
2 An order pursuant to r 12.11(1)(b) of the UCPR that service of the Statement of Claim filed 19 May 2016 be set aside.
3 An order pursuant to r 12.11(1)(g) of the UCPR declaring that the Supreme Court of New South Wales does not have jurisdiction over [Agoda] in respect of the subject matter of the Statement of Claim filed 19 May 2016.
4 An order pursuant to r 12.11(1)(h) of the UCPR that the Supreme Court of New South Wales declines to exercise its jurisdiction in these proceedings.
5 An order pursuant to r 11.7(2)(a) of the UCPR that service of the Statement of Claim filed 19 May 2016 is not authorised by the UCPR.
6 An order pursuant to r 11.7(2)(b) of the UCPR that this Court is an inappropriate forum for the trial of these proceedings.
7 Such further or other order as the Court considers necessary or appropriate.
8 Costs.
At the hearing of the motion, counsel for Agoda disavowed that part of his written submissions that claimed that his client had been invalidly served with the statement of claim of Ms Gonzalez in Singapore. He also explained that, although each order in the motion was pressed, several of them should be understood as being in the alternative to other proposed orders. In light of that explanation, I shall deal with the submissions of the parties compendiously, and determine the matter in the same way.
[8]
Submissions of Agoda
The submissions of Agoda, as refined orally by counsel at the hearing, can be thought of as focusing on two legal propositions. The first was that this Court should decline to exercise jurisdiction. The second was a contention that, even if it did exercise jurisdiction, it can be seen that each of the bases of the statement of claim of Ms Gonzalez is doomed to failure, and should therefore be dismissed by me.
Although each of those contentions shared common themes, it is convenient to discuss them separately, with a degree of repetition as necessary.
[9]
Jurisdiction - primary position
Counsel accepted that, speaking generally, in order to resist this Court exercising jurisdiction, he would need to show that the Supreme Court of New South Wales is a "clearly inappropriate forum." As a starting point, that would require demonstrating that the continuation of proceedings would be oppressive in the sense of "seriously and unfairly burdensome, prejudicial or damaging", or vexatious in the sense of "productive of serious and unjustified trouble and harassment:" Oceanic Sun Line Shipping Company Inc v Fay (1988) 165 CLR 197; [1988] HCA 32, at 248, per Deane J (Oceanic Sun Line); Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; [1990] HCA 55, at 565 (Voth); Henry v Henry (1996) 185 CLR 571; [1996] HCA 51, at 586-587.
Counsel submitted, however, that the operation of the exclusive jurisdiction clause places the "onus" upon Ms Gonzalez to show strong cause for departing from the exclusive jurisdiction clause as reflecting the bargain struck between the parties, and to show that it is more appropriate for her claim to be heard in this Court.
As Brennan J discussed in Oceanic Sun Line at 231, the effect of such a clause on any determination of a forum non conveniens question, he submitted, is as follows:
Before a court can refuse to enforce a contractual stipulation in order to allow a plaintiff a right to sue which he has bargained away the court must have substantial grounds prevailing over what Dixon J in The "Mill Hill" called "a strong bias in favour of maintaining the special bargain".
[footnotes deleted]
Moreover, counsel for Agoda referred to the more expansive statement of that modifying principle provided by Giles CJ in FAI General Insurance Co Ltd v Ocean Marine Mutual Protection & Indemnity Association Ltd (1997) 41 NSWLR 559, at 569 (FAI):
The criterion familiar in relation to a stay of proceedings on forum non conveniens grounds, whether this Court is a clearly inappropriate forum (see Voth), is displaced or modified when there is a submission to the exclusive jurisdiction of the courts of another country. In such circumstances the starting point is that the parties should be held to their bargain, and while this Court retains its jurisdiction and may decline to grant a stay of proceedings substantial grounds for doing so are required: see Huddart Parker Ltd v The Ship "Mill Hill"; Oceanic Sun Line; Akai Pty Ltd v Peoples Insurance Co Ltd (dissenting in the result but unimpaired on this point). The principles identified in The Eleftheria Owners of Cargo Lately Laden on Board the Ship or Vessel Eleftheria v The Eleftheria (Owners) (see, eg, Aratra Potato Co Ltd v Egyptian Navigation Co (The El Amria) and Citi-March Ltd v Neptune Orient Lines Ltd). They have been adopted in the Court of Appeal and the High Court, and in my opinion I should apply them. They are:
"(1) Where plaintiffs sue in England in breach of an agreement to refer disputes to a foreign court, and the defendants apply for a stay, the English court, assuming the claim to be otherwise within its jurisdiction, is not bound to grant a stay but has a discretion whether to do so or not.
(2) The discretion should be exercised by granting a stay unless strong cause for not doing so is shown.
(3) The burden of proving such a strong cause is on the plaintiffs.
(4) In exercising its discretion the court should take into account all the circumstances of the particular case."
[references abbreviated for convenience of reader]
[10]
Jurisdiction - ancillary position
Finally, as against the possibility that I were to find that the exclusive jurisdiction clause had not been incorporated into the contract, with the result that it would be incumbent upon counsel for Agoda to show that this Court is indeed a clearly inappropriate forum, counsel for Agoda relied upon the five factors summarised above. He placed particular emphasis on the law of Singapore as the proper law of the contract in any event, and the role of technology in alleviating the potential inconvenience and expense of cross-border litigation, in support of the proposition that he had shown that the Supreme Court of New South Wales is a clearly inappropriate forum for the resolution of this dispute.
[11]
Summary dismissal - contract claim
Separately, Agoda submitted, that, even assuming that the applicable law was that of New South Wales and Australia, and even assuming that Ms Gonzalez was entitled to litigate her claim in this Court, and even taking the case of Ms Gonzalez at its highest, the contract claims, and her claims pursuant to the ACL, are doomed to failure.
As for the contract claim, the terms to which she agreed contain two clauses that make clear that Agoda had no control over, and took no responsibility for, the accommodation provided by the hotel, and disclaimed all liability in respect of any loss suffered Ms Gonzalez that was attributable to the hotel. For instance, clause 1 of the terms (the scope of service clause) contains the following disclaimer of liability:
…The Site does not constitute and should not be regarded as a recommendation or endorsement of (the quality, service level or rating of) any Hotel listed on the Site. We hereby expressly disclaim any representation, warranty or undertaking in relation to the quality, status or adequacy of any Hotel listed on the Site.
Similarly, part of clause 10 of the terms contains an express and unambiguous limit and exclusion with regard to the extent that Agoda was liable for damage or injury attributable to the hotel (the limitation of liability clause):
…TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL AGODA...BE LIABLE TO ANY PERSON OR ENTITY WHATSOEVER FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, COMPENSATORY, CONSEQUENTIAL OR PUNITIVE DAMAGES OR ANY DAMAGES OR LOSSES WHATSOEVER, INCLUDING BUT NOT LIMITED TO (WHERE RELEVANT CAUSED BY)…ANY (PERSONAL) INJURY…ATTRIBUTABLE TO THE HOTEL (ITS EMPLOYEES, DIRECTORS, OFFICERS, AGENTS, REPRESENTATIVES OR AFFILIATED COMPANIES)…REGARDLESS OF THE FORM OF ACTION, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE.
[capitalisation in original]
In addition to the limits imposed by the scope of service clause and the limitation of liability clause, a further portion of clause 10 of the terms reiterates that there was no substantive affiliation or relationship of control between Agoda and the hotel:
…Agoda does not in any way (directly or indirectly), independently or in conjunction with any party) own, manage, operate or control the Hotels, or any room in such Hotels. The Hotels are liable and responsible for providing accommodation and welcome people who have booked through Agoda as their guests.
[12]
Summary dismissal - ACL claim
Turning to the other basis of the claim, counsel for Agoda submitted that the ACL claims made by Ms Gonzalez were all doomed to failure, because it is clear that the services provided by Agoda did not infringe the ACL.
Counsel for Agoda contended that the statutory guarantees set out in ss 60 and 61(1) of the ACL do not extend to Agoda providing a service associated with hotel rooms, for the simple reason that the evidence shows that Agoda was not a service provider akin to a hotelier. Rather, it was an "aggregator" that permits its customers to book hotel rooms around the world, those rooms being built, maintained and proffered by others.
Section 60 of the ACL relevantly provides:
…If a person supplies, in trade or commerce, services to a consumer, there is a guarantee that the services will be rendered with due care and skill.
Section 61(1) of the ACL relevantly provides:
…If:
(a) a person (the supplier) supplies, in trade or commerce, services to consumer; and
(b) the consumer, expressly or by implication, makes known to the supplier any particular purpose for which the services are being acquired by the consumer;
there is a guarantee that the services, and any product resulting from the services, will be reasonably fit for that purpose.
It was submitted that those provisions focus on the nature of the services provided to the consumer, the purpose for which these services are required by the consumer, and the extent to which that purpose is made known to the supplier. Their scope depends on the terms of any agreement between the supplier and the consumer, the services requested by the consumer, and the services that the supplier agreed to supply or did, in fact, supply.
The position of counsel was that the services agreed to, and ultimately provided by, Agoda under its contractual obligations to Ms Gonzalez were limited to confirming the availability of, and securing the reservation at the hotel for accommodation of the type and duration booked by Ms Gonzalez. Moreover, under the terms, Agoda did not hold itself out as an hotelier, and did not accept any obligation in respect of the nature and quality of the accommodation reserved by Ms Gonzalez. Indeed, counsel noted, with regard to the contract claim, Agoda expressly disclaimed any responsibility or liability.
[13]
Submissions of Ms Gonzalez
Although they were presented in a slightly different order from that adopted above, it is convenient to set out the submissions of counsel for Ms Gonzalez within the same structure.
[14]
Jurisdiction - primary position
Counsel for Ms Gonzalez submitted that, as a default rule, and in the absence of an exclusive jurisdiction clause, the burden is upon Agoda as the defendant in proceedings commenced in the Supreme Court of New South Wales to demonstrate that this Court would be a clearly inappropriate forum. He referred to the judgement of Deane J in Oceanic Sun Line at 248 as authority for the proposition that:
...The onus lies upon the defendant to satisfy the local court in which the particular proceedings have been instituted that it is so inappropriate a forum for their determination that their continuation would be oppressive and vexatious to him.
Counsel for Ms Gonzalez noted that, pursuant to this default test, Agoda was required to establish "the inappropriateness of the local court and not the appropriateness or comparative appropriateness of the suggested foreign forum:" Voth at 565.
Counsel for Ms Gonzalez also accepted that the exclusive jurisdiction clause, if truly part of the contract, would shift the "onus" and alter the test of inappropriateness of forum, with the result that Ms Gonzalez would need to establish strong cause for her case to be heard in New South Wales, according to the test in Oceanic Sun Line and FAI.
In resistance to the latter, counsel for Ms Gonzalez submitted that there is a real question whether the exclusive jurisdiction clause was indeed incorporated into the contract and operative, in light of the mechanics of the website of Agoda, and in particular the fact that one was not required to "tick a box" explicitly accepting them. That played a role, he submitted, not only with regard to whether there was an "onus reversal" of the kind discussed in Oceanic Sun Line and FAI, but also as to whether one could be sure that the law of Singapore is indeed the law of the contract, thus impugning the contention that, speaking very generally, a foreign court should determine a foreign law.
He submitted that, if the exclusive jurisdiction clause did not form part of the contract, then there is no question of Ms Gonzalez being called upon to honour it by litigating her claim in Singapore.
In support of his anterior contention that the exclusive jurisdiction clause was not part of the contract, counsel for Ms Gonzalez submitted that the exclusive jurisdiction clause was included in the online terms on Agoda's website, which were not themselves incorporated into the contract. He identified a number of factors as evidencing that the terms were not properly incorporated. Counsel pointed to the lack of an identifiable signature indicating explicit agreement to the terms. He also noted that the website did not provide reasonable sufficient notice of the terms, in accordance with the test set out in L'Estrange v Graucob [1934] 2 KB 294. There was no prominently displayed "I agree" button to be clicked on the website, with respect to the terms, at the time the contract was formed. Furthermore, inconsistent pronouns used during the booking process were confusing and ambiguous, in that they changed from "you" (within the terms) to "I agree with the booking conditions" (on the website).
[15]
Jurisdiction - ancillary position
In the alternative to the above, and as against the possibility that I were to find that the exclusive jurisdiction clause was incorporated into the contract, thereby altering the "onus" and the test for the exercise of jurisdiction, counsel for Ms Gonzalez submitted that there is nevertheless still strong cause for this case to be heard in New South Wales, for a number of reasons.
First, Ms Gonzalez has the significant commitment of caring for her autistic grandson, and the inconvenience that she would suffer as a result of being absent for an extended period in a foreign country would be considerable.
Secondly, the burden of long-haul travel would have an impact upon the types of witnesses that would be available for Ms Gonzalez to call; namely, treating doctors, medico-legal experts and family members. In respect of her personal injury claim, much of the evidence relates to medical treatment and resulting damage suffered from her injury. Counsel for Ms Gonzalez submitted that the vast majority of such witnesses are located in New South Wales, as Ms Gonzalez received minimal treatment in France, and there are no such witnesses in Singapore.
Thirdly, counsel for Ms Gonzalez noted that s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) and r 31.3 of the UCPR allows for the evidence of Agoda to be conveyed by electronic means to Queens Square, thereby occasioning minimal inconvenience to Agoda.
Fourthly and finally, counsel for Ms Gonzalez rejected any assertion of Agoda that her conduct amounted to "forum shopping", on the basis that the proper law of the contract (and thus the proper forum for the arbitration of the dispute) is that of New South Wales.
In short, even if the "onus" were placed upon his client, counsel for Ms Gonzalez submitted that there were indeed strong reasons for permitting the claim commenced in this Court to continue to defamation here.
[16]
Summary dismissal - claim in contract
Turning to resistance to the separate claim for summary dismissal, counsel for Ms Gonzalez submitted that the claim in contract is not doomed to failure. He noted the stringency of the test propounded in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69, at 128-129 per Barwick CJ (General Steel) and discussed (by analogy) in Agar v Hyde (2000) 201 CLR 552, [2000] HCA 41 at [60]. He contended that the contract claim of Ms Gonzalez was not "manifestly groundless" or "so obviously untenable" that it could not "possibly succeed."
First, he refuted the characterisation of the contract advanced by counsel for Agoda, and asserted that the contract between Ms Gonzalez and Agoda was in fact a contract for the provision of a hotel room, not a hotel booking.
That is, counsel for Ms Gonzalez submitted that the significant amount of control exercised by Agoda over the hotel regarding the booking process established the true nature of Agoda's business: it contracted to provide a hotel room, not a booking for a room.
Counsel for Ms Gonzalez referred to the contract between Agoda and the hotel, which described Agoda's responsibilities in promoting the hotel and transacting reservations. Furthermore, that contract imposed obligations on the hotel to ensure that a booking confirmation voucher provided by Agoda and photo-ID were provided by the customer when checking in. In addition, the payment process (in terms of the contract between Ms Gonzalez and Agoda) charged her credit card first for the Agoda voucher, and only then required the hotel to charge Agoda for the cost of the room. As a result, there was no contract between Ms Gonzalez and the hotel capable of undercutting her contract with Agoda. Those procedural arrangements and payment requirements significantly remove discretion over the hotel booking from the hotel and, he submitted, confer control upon Agoda.
Secondly, as the contract was for a hotel room, counsel for Ms Gonzalez submitted that it contained an implied term that the shower used by Ms Gonzalez at the hotel would be reasonably fit for purpose, and allow for safety of access and egress.
In this vein, counsel for Ms Gonzalez contended that the limitation of liability contained in the terms of the contract between Ms Gonzalez and Agoda was circular and void. That is, the limitation, which opens with the phrase "TO THE EXTENT PERMITTED BY LAW...", on a plain reading means that the scope of the limitation is restricted by the prescriptions of the relevant law. Such a phrase is circular: it results in Agoda's liability being dependent on the proper administration and interpretation of the law, which in truth nullifies the limitation of liability. Moreover, all liability in any jurisdiction is limited "by law", and Agoda has failed to specify which law or jurisdiction apparently limits its liability.
[17]
Summary dismissal - ACL claim
As for the claim pursuant to the ACL and the characterisation of the "services" provided by Agoda, as I have recounted, counsel for Ms Gonzalez submitted that Agoda was not providing the service of sending emails to its customers that attached a voucher for a hotel room. On any common sense analysis, Agoda, although not a hotelier, was undoubtedly providing its customers with a hotel room, not a hotel booking.
In other words, counsel for Ms Gonzalez submitted that the statutory guarantees pursuant to ss 60 and 61(1) of the ACL applied with regard to provision of the hotel room by Agoda, and, more specifically, a guarantee was provided by Agoda that the hotel facilities would be "reasonably fit for purpose."
Moreover, counsel for Ms Gonzalez submitted that there was evidence that Agoda was carrying on business in Australia in accordance with s 131 of the ACL, and that that reinforced his submission regarding the applicability of the statutory guarantees.
Drawing on the factors identified by Edelman J in Valve (No 3) at [197], counsel for Ms Gonzalez pointed to several features of Agoda's business model in Australia, and the nature of the transaction between Ms Gonzalez and Agoda, that indicated that Agoda indeed was carrying on business in Australia. He submitted that Agoda's decision to establish a foreign company registered in Australia; the ability of Australian consumers to subscribe to Agoda and transact directly with Agoda; the existence of Agoda marketing campaigns targeted at Australian consumers; and Agoda's use of an Australian network provider are all aspects of Agoda's business model that tend towards a carrying on of business in Australia. The nature of the transaction, in terms of the contract being formed in New South Wales, payment of the booking fee in Australian dollars directly to Agoda, and the requirement for Ms Gonzalez to provide her country of residence, also constituted evidence, he submitted, that Agoda was carrying on business in this country.
In the alternative, he submitted that, at the least, the question of characterisation is contestable, and therefore the claim founded on ss 60 and 61(1) of the ACL cannot be dismissed on the basis that it is inevitably doomed to failure.
Separately, counsel for Ms Gonzalez also invited attention to ss 67(a) and 67(b) of the ACL, and submitted that the exclusive jurisdiction clause was inoperative in purporting to exclude the ACL, and thus the statutory guarantees that found the claim of Ms Gonzalez are applicable.
[18]
Introduction
In order to determine this motion, it is necessary for me to make a number of findings about legal matters. As the authorities emphasise, however, my findings are, of necessity, contingent, and made only for the purposes of determining the motion: see Puttick v Tenon Ltd (2008) 238 CLR 265; [2008] HCA 54, at [21].
Although I accept that the question of jurisdiction must conceptually proceed any actual exercise of jurisdiction, and despite the fact that the order of the foregoing summary of submissions differs from the following, I consider that my thinking can be more readily understood if I deal with the question of summary dismissal first, on the contingent assumption that I would indeed regard it as appropriate for this Court to exercise jurisdiction.
[19]
Summary dismissal
Turning first to the claim in contract, one may accept that the test for implying a term into a contract to be found in BP Refinery is multi-factorial and difficult to fulfil. One may also accept that purported clause 10 of the terms of the contract contained a provision not only expressly denying warranty of the quality of the hotel in question, but also stating that the express terms of the contract constituted the entirety of it, and that no terms were to be implied into it. But in deciding whether the very high test in General Steel has been made out, and when being asked to bring peremptorily this claim to an end now, I surely would proceed in this particular context on the basis that the prohibiting clause was not incorporated into the contract, for the simple reason that that proposition is contested, and contestable.
That leaves one with the submission of Agoda that the terms contended for by Ms Gonzalez are not to be implied into the contract on any basis. I think that that submission has a great deal of force; because of my lack of certainty of its correctness, on all of the evidence placed before me, I am not affirmatively satisfied that I should dismiss the contract claim now.
The same may be said with regard to the claim pursuant to the ACL: whilst I strongly tend to the view that Agoda was indeed providing the service of supplying hotel room bookings, and not hotel rooms, the issue remains, to my mind, contestable. And that characterisation is the fulcrum upon which the application of the ACL turns. For that reason, I would stay my hand in dismissing that part of the claim as well.
[20]
Jurisdiction - primary analysis
Turning now to the anterior question of the exercise of jurisdiction, the default test (if I may call it that) is that it is incumbent upon the defendant to show that this Court is a clearly inappropriate forum: Voth at 565; generally adopting the test of Deane J in Oceanic Sun Line at 248.
But there is no dispute about the submission of counsel for Agoda that, if the contract contains an exclusive jurisdiction clause, that clause should be given substantial weight, including with regard to the preparedness of this Court to exercise jurisdiction: FAI at 569; adopting the test advanced by Brennan J in Oceanic Sun Line at 231.
As I have explained, the parties are in dispute about the anterior question of whether the exclusive jurisdiction clause is indeed incorporated in the contract. They are also in dispute about whether, if it was so incorporated, it is void and severable under the ACL, or liable to be set aside under the Contracts Review Act 1980 (NSW)(Contracts Review Act). And as I have explained, I do not believe that I can determine those questions conclusively and for all purposes at this interlocutory stage; if I be wrong in that, and I could do so, I do not believe that I should do so.
I think that the best I can do is to say that, prima facie, the contract contains an exclusive jurisdiction clause, and that I think it very probable that it was incorporated in the contract, bearing in mind the need for me to analyse the question of the formation of the contract objectively. In particular, the fact that Ms Gonzalez was not called upon explicitly to "tick a box" with regard to the exclusive jurisdiction clause is, to my mind, significant but not determinative.
Rather, adopting the objective analysis of the contractual intentions of Agoda and Ms Gonzalez according to the approach advanced in Alphapharm, I find that the terms were incorporated by signature and by reference.
In particular, I consider that the signature on the digital document provided by Ms Gonzalez clicking the "Book Now" button (by virtue of s 9(1) of the ETA), the location of the linked terms (above the signature on the digital document), and the standard nature of the terms used by Agoda are significant factors, and that on an objective analysis of the intentions of Agoda and Ms Gonzalez as contracting parties, the terms were indeed incorporated.
[21]
Jurisdiction - ancillary analysis
As against the possibility that I am wrong in my acceptance that the exclusive jurisdiction clause was incorporated in the contract and was effectual, I consider that I should briefly set out an alternative finding.
If that were not the case, and the exclusive jurisdiction clause has no role to play, then the test would not be whether Ms Gonzalez had shown strong cause; rather, as I have said more than once, the default test would be whether Agoda had shown that this Court would be a clearly inappropriate forum for the resolution of this claim.
Again, that calls for analysis of a multitude of competing factors, all of them discussed above in my summary of the submissions of counsel, and some of them discussed in my reasons for my primary determination about jurisdiction.
In the ultimate, whilst I accept that there may be more appropriate forums for resolutions of this claim (for example, a French court springs readily to mind), and whilst there are aspects of proceeding in this court that are disadvantageous to Agoda, if that were the test to be applied by me, I would not be affirmatively satisfied by Agoda that this Court is a clearly inappropriate forum. The following factors are of particular significance to my finding.
First, Agoda chose to carry on business in New South Wales, and to provide its service to countless people who live here. In those circumstances, it is not unreasonable for Agoda to be called upon to respond to a claim made by one of those persons in a New South Wales court.
Secondly, one can readily infer that Agoda has the financial and other resources to engage in litigation in New South Wales. As the evidence on the motion shows, it has already engaged two firms of solicitors here in Sydney.
Thirdly, counsel for Agoda accepted that many key witnesses are located in New South Wales (Ms Gonzalez received little treatment in France, but much treatment in Australia). There are likely to be few (if any) witnesses located in Singapore.
Fourthly, as I have said above, modern technology, and New South Wales legislation facilitating its use in the courtroom, means that the inconvenience to Agoda of being called upon to defend the claim here will not be unduly onerous.
Fifthly and finally, even if it be the case that the law of Singapore is to be applied as the proper law of the contract, that can reasonably and readily be done by a judge of this Court. The commercial law of Singapore is by no means alien to the law of New South Wales; quite the contrary. And it is readily ascertainable here, both digitally and otherwise.
[22]
Summary of findings
My determination provided above may be summarised (in a conceptually correct order) as follows.
First, the exclusive jurisdiction clause was incorporated into the contract between Ms Gonzalez and Agoda.
Secondly, there is no basis upon which the exclusive jurisdiction clause should be regarded as invalid for the purposes of the motion.
Thirdly, in light of the binding nature of the exclusive jurisdiction clause, Ms Gonzalez must show strong cause why she should not be held to it.
Fourthly, she has not done so.
Fifthly, if am wrong in my first or second findings above, Agoda must show that this Court is a clearly inappropriate forum.
Sixthly, if that were the applicable test, I would find that Agoda has not done so.
Seventhly, if I were to exercise jurisdiction, I would not summarily dismiss the contract claim on the basis that it is doomed to failure.
Eighthly, if I were to exercise jurisdiction, I would not summarily dismiss the ACL claim on the basis that it is doomed to failure.
Ninthly and finally, on the basis of my primary analysis, the claims of Ms Gonzalez in this Court should be permanently stayed.
[23]
Costs
The parties jointly asked me to reserve the question of the costs of the motion, and expressed their contentment with that ancillary question being resolved in chambers on the basis of written submissions. My orders set out a timetable to give effect to that joint position.
[24]
Orders
I make the following orders:
1. The proceedings brought by the plaintiff, Ms Leonor Gonzalez, against the defendant, Agoda Company Pte Ltd, are permanently stayed.
2. The costs of the motion are reserved.
3. Unless costs are subsequently agreed, the defendant must file and serve written submissions as to costs within one week of today, of no more than five pages in length.
4. The plaintiff must file and serve written submissions as to costs within one week after that, of no more than five pages in length.
5. The defendant may file and serve written submissions in reply three business days after that, of no more than two pages in length.
[25]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 06 September 2017
The "Payment Details Page" also provided a link to Agoda's standard terms and conditions of booking (the terms).
Clause 10 of those terms was relevantly as follows:
…The Terms and the provision of our services shall be governed by and construed in accordance with the laws of Singapore without reference to Singapore conflict of laws rules, and any dispute arising out of the Terms and our services shall exclusively be submitted to the competent courts in Singapore. The Contracts (Rights of Third Parties) Act (Cap. 53B) is expressly excluded and shall not apply to the Terms.
I shall refer to that part of clause 10 as the exclusive jurisdiction clause.
In short, it can be seen that part of clause 10 of the terms designated "the laws of Singapore" as governing the terms and Agoda's provision of services. The exclusive jurisdiction clause also designated "the competent courts in Singapore" as the forum for resolving any dispute arising out of the terms, and Agoda's provision of services. It also excluded a statute of Singapore.
The structure of the website required Ms Gonzalez to click on a button marked "Book Now." The words "I agree with the booking conditions and general terms by booking this room …" appeared above that button. The text appeared three-quarters down the page, in the centre of the "Payment Details Page." The website did not require her to check a box, or click on a button, or both, specifically pertaining to the exclusive jurisdiction clause.
Ms Gonzalez clicked on the button marked "Book Now." After clicking on the button, Ms Gonzalez was then directed to the "Booking Request Confirmation Page", as she waited for Agoda to accept the booking.
Agoda accepted the booking, and charged it to Ms Gonzalez's credit card. In doing so, Agoda took full payment from Ms Gonzalez and withheld a commission that it would later provide to the hotel upon Ms Gonzalez's arrival or departure, in accordance with Agoda's standard booking procedure.
Ms Gonzalez received an email from Agoda, confirming the acceptance of her booking, on her home computer in Padstow Heights at 5.53pm on the same day. As an attachment to the email, Agoda also provided Ms Gonzalez with a pre-paid hotel voucher, to be presented by her upon check-in at the hotel.
Sometime later, Ms Gonzalez and her husband travelled to Paris for their holiday. They checked into the hotel on 23 May 2013.
On that basis, counsel for Agoda identified five factors showing that Ms Gonzalez had failed to discharge the "onus" of demonstrating strong cause to displace the exclusive jurisdiction clause that not only rendered the law of Singapore the proper law of the contract, but also required that any claim of Ms Gonzalez against Agoda must be litigated in the courts of that nation. As a result, Agoda submitted that the proceedings in this Court should be stayed or dismissed. The five factors were as follows.
First, inconvenience and expense were foreseeable outcomes of Ms Gonzalez agreeing to the exclusive jurisdiction of Singapore, and she should be held to them as an obvious consequence of the bargain to which she agreed.
Secondly, it is simply a matter as to where the inconvenience and expense lies when calling witnesses in the context of cross-border litigation. Should the proceedings continue to trial, Agoda will be put to similar inconvenience and expense (as that asserted by Ms Gonzalez) by having witnesses travel from France and Singapore. Inconvenience is a neutral matter.
Thirdly, the increasing use of technology to facilitate evidence being given by witnesses located overseas by way of video-link would reduce or eliminate the potential inconvenience and expense incurred by Ms Gonzalez, should the proceedings continue in Singapore. In that respect, s 62A of the Evidence Act (Cap. 97) of Singapore expressly permits the use of such technology in civil litigation. The Supreme Court of New South Wales has also embraced audio visual links and other technology in order to obviate the need for long haul travel. In similar vein, there is no explanation why carers or the family members of Ms Gonzalez would be unable to provide her with assistance in caring for her autistic grandson, and thus alleviate any inconvenience and expense incurred by her in that regard.
Fourthly, it does not follow that Ms Gonzalez will be denied access to justice as a result of not retaining her current legal advisers on a "no win no fee" basis, as there is no evidence which reveals her financial position is such that she could not afford to retain legal advisers in Singapore on a conventional commercial basis. Moreover, on a conventional analysis of Ms Gonzalez's action, the claim that she would usually be expected to prosecute would be in negligence against the hotel, not any asserted claim against Agoda.
Fifthly and finally, even assuming for a moment that the exclusive jurisdiction clause does not apply, at the hearing before me counsel for Agoda submitted that the proper law of the contract is that of Singapore in any event, according to the approach of Edelman J in ACCC v Valve Corporation (No 3) [2016] FCA 196, at [82]-[84] (Valve (No 3)). He relied upon the following: Agoda is domiciled in Singapore, with all of its employees based there, with the result that that the contract was performed in Singapore. Furthermore, the terms were a standard form intended to apply to contracts which may be formed with individuals in a multiplicity of jurisdictions, given the international nature of Agoda's business. Finally, counsel for Agoda submitted that the place of formation of the contract, which he accepted was arguably New South Wales, should be accorded very little weight: see Valve (No 3) at [78]-[81].
In short, counsel for Agoda submitted that Ms Gonzalez had failed to demonstrate strong cause to displace the effect of the exclusive jurisdiction clause that required resolution of any dispute in Singapore, not New South Wales.
By the conclusion of the hearing, it was clear that counsel for Ms Gonzalez was contending that the exclusive jurisdiction clause had not been incorporated into the contract; or, if it had been, it was ineffectual for a number of reasons. That raised the anterior question of whether the exclusive jurisdiction clause did indeed operate to change the "onus", and the test, with regard to jurisdiction.
In answer to that submission, counsel for Agoda contended that the exclusive jurisdiction clause contained in the terms formed part of the contract with Agoda into which Ms Gonzalez entered when she clicked the "Book Now" button on the "Payment Details Page."
Counsel for Agoda identified a number of objective factors indicating the incorporation of the terms by reference to them on the "Booking Details Page" of the website of Agoda, according to the statement of principle in Smith v South Wales Switchgear Ltd [1978] 1 All ER 18 at [170]-[171] (Smith). They were: the statement on the "Payment Details Page" that "I agree with the booking conditions and general terms by booking this room…"; the provision of a link to the terms on that page; and the act of positive assent by Ms Gonzalez in pressing the "Book Now" button (which, of course, appeared after the statement of agreement to the terms). He also noted the fact that the terms were expressed as representing the entire agreement between Agoda and Ms Gonzalez (as seen by their preamble); and the expansive reach of the exclusive jurisdiction clause in applying to "any dispute arising out of the Terms of Use and [Agoda's] services".
In addition, counsel for Agoda noted that, pursuant to s 9(1) of the Electronic Transactions Act 2000 (NSW)(ETA), the provision of credit card details and the act of clicking on the "Book Now" button by Ms Gonzalez amounted to her providing her signature in agreement to the booking contract with Agoda and the terms. Thus, the terms were indeed incorporated into the contract, by virtue of Ms Gonzalez providing her "signature" at the end of the digital "document" that contained a provision expressing her acceptance of those terms.
Counsel submitted that any subjective failure on the part of Ms Gonzalez to read the terms, and more specifically the exclusive jurisdiction clause, had no bearing on the objective question of their incorporation into her contract with Agoda: see Smith. He referred to the well-known authority of Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52 (Alphapharm) for the proposition that one construes a contract objectively, not subjectively.
Furthermore, counsel for Agoda rejected the submission advanced his opponent that the exclusive jurisdiction clause was in breach of the prohibition against unfair contract terms in s 24 of the ACL. Rather, counsel for Agoda submitted that the exclusive jurisdiction clause was sufficiently transparent and comprehensible to Ms Gonzalez: the affidavit of Ms Gonzalez read on the motion did not include any complaint that the website posed a particular challenge; or that she found it difficult to understand; or that there was some other aspect whereby she was taken by surprise by the meaning of the terms in general, and the exclusive jurisdiction clause in particular.
In short, the primary position of counsel for Agoda with regard to the threshold question of jurisdiction may be summarised as follows. The contract contained an exclusive jurisdiction clause that mandated litigation in Singapore, in accordance with the laws of Singapore. Ms Gonzalez should be held to her bargain in that regard. Contrary to the position that would pertain if no such clause were part of the contract, it was not incumbent upon Agoda to show that this Court is a clearly inappropriate forum. On the contrary, it is incumbent upon Ms Gonzalez to show that there is strong cause for displacing that part of her bargain. She has not done so; accordingly jurisdiction should be declined.
Therefore, he submitted, even taking her case at its highest, as a matter of contract, Agoda cannot be held liable for any negligence on the part of the hotel, as Agoda has expressly and unambiguously "contracted out" of such liability.
As well as that, to the extent that the claim in contract is based upon implied terms, he submitted that it is inconceivable that terms could be implied into the contract to the contrary of these pellucid provisions. He referred to the high and multi-factorial test for implying terms into a contract to be found in BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266, at 283 (BP Refinery).
In short, he submitted that Agoda facilitates bookings of hotel rooms; it does not provide accommodation as an hotelier.
In those circumstances, counsel for Agoda submitted that it is simply not arguable that his client provided any statutory guarantees in respect of the state, quality or condition of the hotel room, including the allegedly defective shower facilities that ultimately found the claim of Ms Gonzalez.
Finally, at the hearing counsel for Agoda accepted that s 67 of the ACL and determining the proper law of the contract were relevant considerations in ascertaining the impact of the exclusive jurisdiction clause on the statutory guarantees relied upon by counsel for Ms Gonzalez. But he submitted that that is of no great moment: the service that Agoda provided was booking a room, and there is no evidence that it did so in any way open to criticism, let alone an actionable claim.
In short, the position of counsel for Agoda was that there is no utility in permitting the claim to proceed: I would be satisfied that it will fail on both bases, and I should put an end to it now.
Additionally, the website itself contained no explicit and readily seen and read statement about the hotel booking contract being subject to the laws of Singapore. Phone numbers in the United Kingdom and Australia were also listed for "contact us" and customer service enquiries by consumers. Moreover, a typical Australian consumer would not reasonably assume that a contract formed in Australia and payable in Australia dollars would be subject to the laws of Singapore in the event of a dispute.
Counsel for Ms Gonzalez separately submitted that the exclusive jurisdiction clause was inoperative as an unfair contract term, pursuant to s 24 of the ACL, and was therefore severable and void under s 23(1) of that Act. It was said that the exclusive jurisdiction clause generated a significant imbalance between the parties, and occasioned undue detriment to Ms Gonzalez. The requirement that the terms of the contract be construed in accordance with the laws of Singapore would make it extremely difficult for an Australian consumer to understand any legal issues or disputes arising in contract. Furthermore, if the clause were to be given effect, an Australian consumer would have to engage in significant travel, and would incur higher legal costs, by being forced to litigate thousands of kilometres from home.
In addition, he submitted that the exclusive jurisdiction clause was not reasonably necessary to protect the legitimate interests of Agoda, as Singapore and New South Wales are comparable common law systems, and New South Wales is a jurisdiction perfectly capable of managing disputes and doing justice.
Moreover, as McHugh JA stated in Oceanic Sun Line at 267 (when assessing whether a term which gave exclusive jurisdiction to Greek courts was unfair):
… (T)he plaintiff has a strong case for arguing that those provisions of the contract which exempt or limit liability and oust the jurisdiction of courts other than Greek courts contravene the Contracts Review Act.
As a result, counsel for Ms Gonzalez submitted that the exclusive jurisdiction clause must be assessed as void, and the "default position" should apply in determining whether to exercise jurisdiction.
Turning then to apply the default test to the question of forum non conveniens, counsel for Ms Gonzalez submitted that New South Wales would not be a clearly inappropriate forum for a number of reasons. He identified those factors according to the categories outlined in Piatek v Piatek (2010) 245 FLR 137, at 163-164:
(a) any significant connection between the forum selected and the subject matter of the action and/or the parties, such as the domiciles of the parties and the place where the subject matter of the suit is situated;
(b) any legitimate and substantial juridical advantage to the plaintiff, such as greater recovery, more favourable limitation period, better ancillary procedures, or assets within the jurisdiction against which any judgment can be enforced; and
(c) whether the law of the forum will supply the substantive law to be applied in the resolution of the subject case or whether the matter is governed by foreign law.
He submitted that, first, Singapore has no connection with the cause of action, in the sense that the primary cause of action of Ms Gonzalez is the breach of statutory guarantees by Agoda pursuant to Australian legislation (the ACL), and not pursuant to Singaporean law.
Secondly, lawyers in New South Wales have already been engaged by Ms Gonzalez; to date, Agoda has instructed two firms of lawyers based in Sydney to deal with these proceedings, and obviously has the wherewithal to defend itself here.
Thirdly, certain features of the contract between Ms Gonzalez and Agoda indicate that it was at least arguably formed in New South Wales. For instance, payment was made in Australian dollars, and Ms Gonzalez is an Australian citizen who was domiciled in Padstow Heights, Sydney at the time she entered into the contract.
He also noted that Ms Gonzalez only received medical treatment abroad up to the point of being "fit to fly" and to return to New South Wales, and that she has undergone a major operation in Sydney as a result of persistent pain and mobility problems. She has also experienced mental health problems and incurred the expenses detailed in her claim in New South Wales.
Fourthly, the evidence shows that a number of directors and the majority of legal counsel of Agoda are based in Thailand. That suggests that most of the relevant business dealings of Agoda are conducted out of Thailand, rather than Singapore. None of the directors of Agoda are described as Singaporean citizens.
Fifthly, Agoda carries on business in Australia, catering specifically for Australian users of its website. Agoda has a wholly-owned related entity (Agoda International Pte Ltd) that is a foreign company registered in Australia, and has established a registered "branch" office in Sydney, Australia.
Sixthly, Counsel for Ms Gonzalez submitted that continuing the proceedings in this Court entailed a legitimate and substantial advantage to Ms Gonzalez, as the majority of witnesses would be likely to be in Australia as opposed to France, and possibly none would be based in Singapore.
Seventhly, he submitted that, from a costs perspective, there would also be better access to justice for Ms Gonzalez under Australian law, as the "no win no fee" cost agreement that she asserts that she has sought to pursue in New South Wales would not be available in France or Singapore.
Eighthly, in respect of the substantive law to be applied in Singapore, counsel for Ms Gonzalez noted that Agoda had not produced any evidence that a court of that nation would be amenable to a cause of action based on what is arguably a contract made in New South Wales, with injuries suffered in New South Wales and France without any damage sustained in Singapore.
Ninthly and finally, counsel for Ms Gonzalez contended that the matter is governed by a law other than the law of Singapore, in the sense that Ms Gonzalez has rights under Australian law against Agoda, by way of the statutory guarantees pursuant to ss 60 and 61(1) of the ACL.
In short, on the assumption that the "default test" of jurisdiction applies, counsel for Ms Gonzalez submitted that, for a plethora of reasons, Agoda had not shown that this Court is a clearly inappropriate forum.
As a result, counsel for Ms Gonzalez submitted that the limitation of liability in the terms is void and does not bar the claims of Ms Gonzalez in contract law, or indeed under the ACL.
Counsel submitted that, if the proper law of the contract was indeed that of Australia, then, according to s 67(a), his client and Agoda could not be said to have "contracted out" of the ACL. In other words, notwithstanding the exclusive jurisdiction clause, the ACL applied in its entirety to the contract between Agoda and Ms Gonzalez, as the proper law of the contract in this case was, on his thesis, that of Australia.
He submitted that, according to the principles enunciated by Edelman J in Valve (No 3) at [82]-[84], the following factors show that the proper law of the contract in this case is Australia. First, the contract was arguably formed in New South Wales. Secondly, payment was made by Ms Gonzalez in Australian dollars. Thirdly, Agoda operated its website with the assistance of the use of the Australian facilities of the network provider Edgecast Network. Finally, Ms Gonzalez is a resident of Australia.
Furthermore, counsel for Ms Gonzalez submitted that by virtue of s 67(b) of the ACL and the nature of Agoda's business in Australia, it was not open to Agoda to avoid the statutory guarantees pursuant to the ACL by designating the law of Singapore as the proper law of the contract in the exclusive jurisdiction clause. Essentially, in carrying on business in Australia, Agoda was subject to the ACL: Valve (No 3) at [85]-[89].
In short, for a variety of reasons, counsel for Ms Gonzalez submitted that I could not be satisfied that the claim pursuant to the ACL is doomed to failure.
Explaining my view above in more detail, in terms of incorporation by signature, the terms were readily available to Ms Gonzalez, and Agoda did not seek to conceal the terms. The general rule expressed in Alphapharm at [185] applies, such that Ms Gonzalez, having provided her signature, is bound by the terms, and any failure on her part to read and comprehend them is "immaterial."
Moreover, the ability readily to access the terms, and their location (directly above the "Book Now" button), as features of the standard digital document used by Agoda support incorporation by reference, according to the test in Smith at [170]-[171].
Separately, I do not accept (on the evidence placed before me) that there is anything unfair about an international corporation seeking to protect itself from claims being litigated in the courts of countless countries applying countless different substantive and procedural laws. And I say that appreciating that there are shades of differences in the meaning of the concept of "unfairness" contained in the ACL, and the Contracts Review Act. In other words, I do not believe that I should approach the question on the basis that the exclusive jurisdiction clause is void for unfairness.
In short, my primary approach to the question of jurisdiction is based upon acceptance of the proposition that the exclusive jurisdiction clause is indeed incorporated into the contract, thereby throwing the "onus" onto Ms Gonzalez to show why she should be permitted to litigate in the Supreme Court of New South Wales, as opposed to in a Singaporean court.
In the same vein, and without being determinative for all purposes, I accept that the law of the contract is that of Singapore, whether one arrives at that destination by way of the exclusive jurisdiction clause, or by way of analysis analogous to that provided by Edelman J in Valve (No 3) at [82]-[84].
To digress for a moment, because of the importance of Valve (No 3) and because each counsel relied upon it heavily, I think that I should set out (very briefly) my understanding of the principles for which that decision stands.
To set out the background to that matter concisely, the Australian Competition and Consumer Commission (ACCC) claimed that technology and entertainment company Valve Corporation (Valve)(located in and operating from Washington State, in the United States of America) had breached the ACL in making false or misleading representations regarding refunds to Australian users of its online game distribution platform "Steam".
The import of what Edelman J found was as follows. First, with regard to the key threshold question of what is to be regarded as the proper law of the contract, the place in which the contract was formed is relevant, but not determinative. The place of performance of the contract, and the nature and subject matter of the contract, are also relevant factors in establishing "the system of law with which the transaction has its closest and most real connection": Valve (No 3) at [65], [82]-[84]; drawing on the test enunciated by Lord Simonds in Bonython v Commonwealth [1951] AC 201, at 219.
Secondly, for the purposes of the ACL, carrying on business in Australia is to be assessed according to its ordinary meaning, and by reference to the impugned conduct as a whole, even where "the contravening conduct implicitly involved a separate connection with Australia (such as a supply of goods in Australia)": Valve (No 3) at [159].
Thirdly, his Honour held that the operation and reach of s 67(b) of the ACL (which voids contractual terms that purport to substitute another country's law, or the law of an Australian State or Territory, for the law of Australia) extends to foreign companies carrying on business in Australia: Valve (No 3) at [85]-[89].
As I have said, focusing for a moment on the first principle summarised above, whether the exclusive jurisdiction clause is in truth part of the contract or not, in my opinion the law of the contract is the law of Singapore. I say that because Agoda is domiciled in Singapore; all of its paid employees are based there; the contract was performed by Agoda in Singapore; and the terms of that contract were a standard form intended to apply to contracts which may be formed with individuals in a multiplicity of jurisdictions, given the international nature of Agoda's business. The place of the formation of contract - which Agoda accepts was arguably Sydney - is significant but not conclusive by any means: see Valve (No 3) at [78]-[81]. That is because, as I have said, I understand the import of what his Honour has written to be that, even if the contract was formed in Sydney, that is not the end of the matter.
Returning to the fundamental enquiry then, the question therefore is simply: has Ms Gonzalez shown strong cause why she should not be held to the exclusive jurisdiction clause? There are factors to which each counsel invites attention that undoubtedly point both ways. But I think that a balancing of all of the relevant factors about which submissions were made does not lead to the conclusion that Ms Gonzalez must establish. I place particular emphasis on the following.
First, as I said a moment ago, in my opinion the proper law of the contract is the law of Singapore.
Secondly, on a conventional analysis of Ms Gonzalez's claim, she would prima facie be expected to pursue a claim for the tort of negligence against the hotel in France: the hotel is located in Paris, the fall occurred in Paris, and that is where the allegedly defective shower screen allegedly caused the injury. The result is that the applicable standards of construction and maintenance of shower screens must be those of France, whichever law is applicable, and whichever forum is the site of resolution of the claim. In saying that, I accept that neither the courts of Australia nor the courts of Singapore are the optimal sites for application of the norms of a third country; but suffice to say this factor does not assist Ms Gonzalez in showing strong cause for litigating here.
Thirdly, inconvenience and expense were foreseeable outcomes of Ms Gonzalez (objectively) agreeing to the exclusive jurisdiction of Singapore. And in any event, in light of the technology that has developed over the past twenty years (not least the ability to communicate conveniently and cheaply by audio visual link both in and out of court), whilst I accept that it will be more difficult for Ms Gonzalez to pursue her claim in Singapore, the problems will not be enormous. Relatedly, the inconvenience (albeit relatively minor) to Agoda of the proceedings being conducted in New South Wales plays a role in whether Ms Gonzalez has discharged her "onus".
Fourthly, I accept of course that Ms Gonzalez cares for her autistic grandson, and it will be difficult for both of them if they are separated. But on the evidence placed before me I think that other carers or family members could provide that assistance during any absence from Australia on her part (even assuming that such an absence is truly necessary).
Fifthly and finally, for the purposes of the motion I accept that there is no system of "no win no fee" litigation in Singapore. And I also accept that Ms Gonzalez is not a particularly wealthy person (though I appreciate the countervailing argument of counsel for Agoda that she did at least have the wherewithal to arrange service of his client in Singapore). But the evidence is not detailed as to her inability to fund litigation on a conventional basis; in any event, I think that the principle that one should be held to one's bargain, even if it turns out to be financially disadvantageous, has a role to play in this context.
In short, I answer the question as to whether Ms Gonzalez has discharged her "onus" by simply saying that, although the factors relied upon by her counsel may provide some cause why she should not be held to the terms of the contract, I do not assess those factors as affirmatively showing strong cause why she should be permitted to depart from those terms. I therefore answer the primary question about jurisdiction in the negative.
In short, if the correct question to ask myself is whether Agoda has established that the Supreme Court of New South Wales is a clearly inappropriate forum, I would answer that question in the negative, and permit the claim to continue.
I appreciate, of course, that my alternative finding is the converse of my primary (and determinative) one; that is simply the result of applying a different test, and imposing an "onus" upon the opposing party.