Plaintiff v Defendant

2 Caroline Correa ('the plaintiff') was on a 14 day cruise operated by Carnival PLC ('the defendant') which left Melbourne on 21 December 2013 and was travelling to ports in New Zealand and back to Melbourne ('the cruise'). On the night of 25 December 2013, in the nightclub of the ship, the plaintiff slipped and fell while descending steps from the dance floor.

3 The plaintiff alleges that she slipped and fell because the steps were wet, slippery and unsafe. As a result of the fall, the plaintiff claims she has suffered injury, loss and damage. The injuries include a fractured right femur and a damaged right knee.

4 The plaintiff filed a Writ and Statement of Claim on 12 June 2015. The defendant filed a Summons on 15 July 2015 and an Amended Summons on 14 August 2015. The defendant relies on the following:

(a) Affidavit of Stuart Allison affirmed on 4 August 2015;

(b) Affidavit of Lauren Miller affirmed 13 August 2015; and

(c) Outline of submissions dated 24 August 2015.

(a) Affidavit of Caroline Correa sworn 18 November 2015; and

(b) Outline of submissions dated 3 December 2015.

6 The claim is brought pursuant to s 267(4) of the Australian Consumer Law ('ACL'), whereby the plaintiff may bring an action against the defendant to recover damages for any loss or damage suffered because of the failure to comply with the guarantee. The guarantee in the present case arises under s 60 of the ACL which requires that services (the cruise) should be rendered with due care and skill. The plaintiff alleges that the services were not rendered with due care and skill which caused the steps to be wet, slippery and unsafe.

7 The defendant's affidavit of Stuart Allison outlines the online booking process the plaintiff completed. Mr Allison deposed that when a passenger processes their booking, they are required to tick a box which confirms acceptance of the Terms and Conditions and Privacy Policy.[1]

8 Ms Miller, assistant general counsel of Carnival PLC, deposes that Carnival PLC's head office and in-house legal team are based in NSW. The clause stating 'This contract is governed by the laws in force in New South Wales. You agree that any action you bring against us will be brought in New South Wales' ('the exclusive jurisdiction clause') was contained within the Terms and Conditions that passengers are required to accept when booking online.[2]

9 The defendant submits that s 5(2)(b)(iii) requires that cases be 'heard in the forum dictated by the interests of justice'.[3] The appropriate forum is to be identified by assessing the existence and strength of the 'connecting factors' to that forum.[4]

10 The defendant submits that it is inappropriate to start from a presumption that Ms Correa's initial choice of forum in this case carries any independent weight and that this does not represent a connecting factor.

11 The defendant submits that the most important connecting factor in these proceedings is the exclusive jurisdiction clause in the parties' contract.[5] The defendant submits that the clause formed part of the parties' contract, is an exclusive jurisdiction clause, and encompasses the current proceeding brought by Ms Correa, as such, it should be given considerable weight by this Court in determining the interests of justice in this application.[6]

12 It is submitted that the clause formed part of the parties' contract, as agreed to by the plaintiff at the time of the online booking, as the clause formed part of the Terms and Conditions contained in the booking process, agreed to by the plaintiff when she electronically signed the contract. The defendant submits that the clause represents a contractual term that is binding on the plaintiff.

13 The defendant submits that the language of the clause evinces an intention that it be an exclusive jurisdiction clause and that the clause be construed broadly.[7] The defendant further submits that it does not matter that the clause does not contain the word 'exclusive'.[8]

14 It is submitted that it is in the interests of justice for this proceeding to be transferred to NSW in order to confirm the importance of a choice of jurisdiction clause agreed upon by parties. The defendant refers to public policy reasons for holding parties to their agreements in order to maintain certainty of contract.[9]

15 The defendant referred to other connecting factors that support its application to transfer these proceedings to NSW in written submissions, including:

(a) Carnival's Australian head office and in-house legal team is based in Sydney, NSW;

(b) there is no connection between the location of the alleged incident and the jurisdiction in which the plaintiff has chosen to commence proceedings; and

(c) there is no difference in the substantive law, the Australian Consumer Law, applied by the Supreme Court of NSW as compared to this Court.

16 Counsel for the defendant submitted that Carnival's dispute resolution and claim management team are in Sydney and therefore it is not correct to say that the defendant does not claim any difficulty in running litigation from this Court.[10]

17 With regard to the location of witnesses, the defendant submits that the convenience of the plaintiff's witnesses should not carry substantial weight given that witnesses can readily travel interstate.[11]

18 With regard to the location of the plaintiff's solicitors, the defendant submits that:

(a) there is no evidence to suggest that the plaintiff's current solicitors could not or would not continue to act for her if the matter were transferred to NSW[12]; and

(b) there is no evidence that the plaintiff could not obtain other legal representation in NSW.[13]

19 The defendant submits that consideration of the more appropriate forum is not based on consideration of 'mere practical convenience'.[14]

20 Counsel for the defendant submitted that 'no adverse inference should be drawn against Carnival for its failure to file a defence' and notes that the defendant has acted promptly at all times.[15] It was added that the defendant intends to file a defence when it is appropriate.[16]

Application for dismissal or stay and the Court's inherent jurisdiction

21 The defendant contends that under r 23.01 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic), the Court should dismiss or stay the proceedings because the plaintiff's commencement of this proceeding in Victoria, bearing in mind the exclusive jurisdiction clause, represents an abuse of process. The defendant submits that such an abuse of process, warrants relief under r 23.01 or alternatively, the Court's inherent jurisdiction.

22 The defendant submits that such relief would not shut out the plaintiff from her claim, but would require her to litigate against Carnival in NSW.

23 Once again with reference to this type of relief, the defendant referred to the importance of public policy considerations involved in holding parties to their contractual bargains.

24 The plaintiff deposes that she opposes the defendant's application to transfer the proceedings to the Supreme Court of New South Wales on the basis that it would inconvenience the witnesses who do not reside in NSW and that she does not know any lawyers in NSW. The plaintiff deposes that her current solicitors, Arnold Thomas & Becker, do not have an office in NSW.

25 The plaintiff deposes that eight of the nine witnesses reside in Victoria[17], as well as noting that there is no evidence as to where the defendant's witnesses reside. Counsel for the plaintiff also noted that it is most likely that the defendant's medical experts will reside in Melbourne.[18]

26 It is submitted that while the defendant's head office is in NSW, the defendant does not claim any difficulty in running litigation in Victoria.

27 Counsel for the plaintiff noted that the law covering the relevant transaction is the law of NSW but that the defendant had not identified any real difference between the law of NSW and Victoria, particularly given the claim was based on the Federal Australian Consumer Law.

28 It was submitted that the fact that the injury occurred in international waters assisted neither party.

29 Counsel for the plaintiff submitted that the construction of the jurisdictional clause is not clearly an 'exclusive jurisdiction' clause[19] due to the lack of the word 'exclusive'.[20] Furthermore, even if the Court finds the contractual provision to be an exclusive jurisdiction clause, it is submitted that it is a 'take them or leave them' clause.[21]

30 Counsel for the plaintiff referred to the recent decision of Daly AsJ in Andrew Kohn Pty Ltd v Mrs Mac's Pty Ltd[22] where her Honour held that a jurisdictional clause was a factor 'of some, if only modest, weight'.[23] Her Honour noted that the weight to be given to the clause may vary when the parties were conscious of the jurisdiction at the time the agreement was formed, as opposed to where the clause is part of a standard form contract. Counsel for the plaintiff therefore submitted that given the clause in this case was part of a standard form agreement, it should be considered of little weight.

31 It was noted in the plaintiff's written submissions that Robson J in Irwin v Queensland[24] found that usually significant weight is attached to the place of the tortious wrong and the residence of the parties. Given the wrong occurred at sea, the plaintiff's residence is in Victoria and the defendant's residence is partly overseas and partly in NSW, the plaintiff submits that this factor weighs 'decisively' in the plaintiff's favour.

32 Counsel for the plaintiff submits that the defendant's failure to file and serve a defence leaves the Court in a position where it is unable to determine what the issues will be at trial and therefore what the interests of justice require.[25]

Application for dismissal or stay and the Court's inherent jurisdiction

33 The plaintiff submits that the application to dismiss or stay this proceeding is misconceived as there is no doubt that this Court has jurisdiction to hear and determine the dispute and there is no evidence of an ulterior purpose in the plaintiff commencing the action.[26]

34 Counsel for plaintiff notes that if this application were granted, it would result in further cost and delay to both parties, therefore, it would be preferable to transfer the proceeding to NSW rather than dismissing it.[27]

35 Section 5(2)(b)(iii) of the Cross-Vesting Act states:

(2) Where -

(a) a proceeding (in this subsection referred to as the relevant proceeding ) is pending in the Supreme Court (in this subsection referred to as the first court); and

(b) it appears to the first court that -

...

(iii) it is otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of another State or of a Territory - the first court shall transfer the relevant proceeding to that other Supreme Court.

36 Therefore, the 'interests of justice' will determine this application.

37 The principles relevant to this provision were determined by the High Court of Australia in BHP Billiton Ltd v Schultz.[28] They were also examined by Robson J in Irwin v Queensland.[29] Justice Robson determined that the relevant principles included:

(a) The Act requires the Court should exercise the power of transfer whenever it appears necessary in the interests of justice that it should be exercised;

(b) It is not necessary that it should appear that the first court is a 'clearly inappropriate' forum. It is necessary and sufficient that it appears that in the interests of justice, the second court is more appropriate than the first court;

(c) The appropriate court is the natural forum as determined by the connecting factors to that forum;

(d) Relevant connecting factors include matters of convenience and expense such as availability of witnesses, the places where the parties respectively reside or carry on business, and the law covering the relevant transaction;

(e) Other factors which may be relevant include:

(iii) the convenience of the parties and witnesses;

(v) the experience of a particular court and its ability to provide an efficient and speedy trial; and

(vi) the condition of a party, for example, life expectancy.

(f) As a general rule, significant weight is to be attached to the place of the tortious wrong and the residence of the parties in a personal injury claim arising out of a claim in tort.[30]

38 In Roll Mollison Group Pty Ltd v The Really Useful Company (Australia) Pty Ltd,[31] Warren J (as she then was) stated:

In determining whether to order a transfer under s 5(2) of the [Act] the Court must be satisfied as to which is the 'more appropriate forum' for the hearing and determination of the dispute. The courts have held that the 'more appropriate forum' is the forum with the 'most real and substantial connection' with the subject matter of the proceeding. Relevant factors to be taken into account in determining the more appropriate forum have included three factors. Firstly, the governing law of any agreement in dispute. Secondly, the connection between the alleged conduct and the jurisdiction. Thirdly, the cost and inconvenience for the parties as to the forum selected.

39 Rule 23.01 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) ('the Rules') states:

23.01 Stay or judgment in proceeding

(1) Where a proceeding generally or any claim in a proceeding -

(a) does not disclose a cause of action;

(b) is scandalous, frivolous or vexatious; or

(c) is an abuse of the process of the Court -

the Court may stay the proceeding generally or in relation to any claim or give judgment in the proceeding generally or in relation to any claim.

(2) Where the defence to any claim in a proceeding -

(a) does not disclose an answer; or

(b) is scandalous, frivolous or vexatious -

the Court may give judgment in the proceeding generally or in relation to any claim.

(3) In this Rule -

(a) a claim in a proceeding includes a claim by counterclaim and a claim by third party notice; and

(b) a defence includes a defence to a counterclaim and a defence to a claim by third party notice.

40 The Amended Summons specifically refers to an 'abuse of process' which extends to proceedings that:

(a) are seriously and unfairly burdensome, prejudicial or damaging;

(b) are productive of serious or unjustified trouble and harassment; and

(c) would bring the administration of justice into disrepute.[32]

41 The plaintiff resides in Victoria. Of the nine witnesses she intends to call, eight live in Victoria.[33]

42 The defendant has not as yet filed a defence. The reason provided for not having filed a defence is that the defendant was awaiting the determination of this application. The plaintiff issued her writ and statement of claim on 12 June 2015. The defendant filed its summons on 15 July 2015 and the amended summons was filed on 14 August 2015. The defendant's affidavits in support were filed on 4 and 13 August 2015. The delay in the hearing of the defendant's summons is not due to any conduct of either party. Having said that, there is no evidence before the Court of any factor in relation to the defendant's possible defence which may influence the balancing exercise in determining what is in the interest of justice in this application. Further, there is no evidence in relation to the defendant's witnesses and their location.

43 The defendant's head office is in New South Wales. I accept that the defendant does not have an office in Victoria.

44 The defendant is not an Australian company. It runs all of its dispute resolution processes from Sydney.

45 The parties agree that there is no connection between the location of the alleged accident and the jurisdiction in which the plaintiff chose to commence proceedings.

46 The parties also agree that there will be no differences of substantive law in relation to the ACL applied by the New South Wales Supreme Court as compared to this Court.

47 The contract between the plaintiff and the defendant was formed in the course of the online booking process. There was no dispute that the plaintiff finalised her booking for the cruise in 2013, which included the use of the defendant's online 'Cruise Personaliser' booking process. All prospective passengers complete the online Cruise Personaliser booking process to finalise their booking for tickets.

48 There was no dispute that the contract incorporated all the terms presented to the plaintiff by the 'Cruise Personaliser' including the jurisdiction clause. The terms of the contract including the jurisdiction term were provided on the Cruise Personaliser web page, entitled 'Passage Contract', which was a necessary step in the process of finalising the plaintiff's booking in the defendant's electronic booking system.

49 The plaintiff agreed to those terms by electronically signing the contract. This was done by the plaintiff clicking the check boxes on the 'Passage Contract' web page that stated 'I accept the Passage Contract on behalf of ... ' and then clicking the proceed button. Unless the latter step was completed, the plaintiff could not finalise her booking for the cruise.

50 The defendant submits that the language of the clause viewed as a whole evinces an intention that it be an exclusive jurisdiction clause. Whether or not the clause should be construed as an exclusive or non-exclusive clause is not, in the circumstances of this case, determinative. Even if I accept that the clause is an exclusive jurisdiction clause, and that it may as such carry more weight in the exercise of the Court's discretion, I do not consider that it is in the interest of justice to transfer the plaintiff's claim to New South Wales.

51 The defendant submitted that the language of the jurisdiction term was clear and unambiguous. There was no evidence before the Court the plaintiff did not understand the term. In this case, while there is no suggestion of duress by the defendant on the plaintiff to sign the contract, the jurisdiction clause was contained ultimately in a standard form contract. The plaintiff did not have legal advice about the term. This is not a case where the plaintiff can be said to have been conscious of the jurisdiction clause creating a connecting factor to New South Wales in the event of an action arising out of the cruise. As such, I agree with Daly AsJ in Andrew Kohn Pty Ltd v Mrs Mac's Pty Ltd[34] that more weight be given where the parties were conscious of the jurisdiction at the time the agreement was formed compared to where the clause is in the standard contract. Here I consider the jurisdiction term was as described by the plaintiff as part of the defendant's standard form take it or leave it contract. I note that as Whelan J (as he then was) in Slater & Gordon v Porteous[35] said:

Whilst exclusive jurisdiction clauses ...do not have the effect that they have in the 'forum non conveniens' context, they remain a relevant factor and may be the critical factor in a particular case. Such a clause may indicate that the parties turned their minds to the question of where litigation should occur and agreed upon a single exclusive venue. This factor may be particularly compelling where it can be said that the parties must have been conscious at the time of the agreement of the existence of connecting factors between potential disputes and a State other than the exclusively designated State, and must have been conscious of the existence of potential inconvenience for one of the parties in litigating in the exclusively designated State.

52 The defendant submitted in relation to the location of the plaintiff's witnesses that the convenience of those witnesses should not carry substantial weight. It was submitted that given witnesses can readily travel interstate and that evidence can be provided via audio visual and digital means that this factor should not carry substantial weight.

53 There is no doubt that technology and the ability to move interstate is now something that can be done with much more ease. However, in circumstances where at this stage almost all of the witnesses are located in Victoria, a transfer to NSW would add amongst other things cost and unnecessary complexity to the trial if such witnesses were required to give evidence in New South Wales.

54 The plaintiff also submits that her current solicitors may not be able to continue to act for her if the matter were transferred to New South Wales. While this is a factor to consider it is not to my mind of any real significance in the context of this case. There is no evidence that the plaintiff's current solicitors would continue to act for her in this matter if it were transferred to New South Wales. Further, it was made clear in the course of the hearing that the plaintiff's solicitors have acted for plaintiffs in the past in proceedings issued in New South Wales.

55 I consider, that overall, the interests of justice as indicated by the connecting factors, including the jurisdiction clause, do not compel the transfer of proceedings to the New South Wales Supreme Court. I do not consider that in the circumstances of this case the parties' agreement is an overwhelming factor as submitted by counsel for the defendant. I do not consider that it is in the interest of justice for this proceeding to be transferred and determined in New South Wales.

56 The defendant submits that in the alternative that the Court pursuant to its inherent jurisdiction stay or dismiss any proceeding which amounts to an abuse of process. The power is expressly recognised by r 23.01 of the Rules.

57 The defendant submits that the plaintiff's commencement of this proceeding in Victoria in the face of what it considers to be an exclusive jurisdiction clause requiring the proceeding to be brought in New South Wales is an abuse of process and warrants relief under r 23.01 and/or the clause inherent jurisdiction. For the purpose of this argument, even if I accept that this is an exclusive jurisdiction clause, I consider that the defendant's application to stay or dismiss the proceeding is misconceived.

58 This Court has jurisdiction to hear and determine this dispute.[36]

59 Accepting that the New South Wales law is relevant to this proceeding, this Court is equipped and able to apply the law of that State.

60 The defendant has not pointed to an ulterior purpose in the plaintiff commencing this proceeding or that it would cause a serious or unfair burden on the defendant.

61 In the circumstances, I do not consider that there is any basis for the defendant's application to stay or dismiss the proceeding either pursuant to the Court's inherent jurisdiction or r 23.01 of the Rules.

62 In summary, I dismiss the defendant's application. I will ask the parties to prepare a proposed order for the conduct of the proceeding. I will hear the parties on costs.

[1] Affidavit of Stuart Allison affirmed 4 August 2015 [3].

[2] Affidavit of Lauren Miller affirmed 13 August 2015 [9]-[10].

[3] BHP Billiton Ltd v Schultz [2004] HCA 61; (2004) 221 CLR 400, 421.

[4] Ewins v BHP Billiton Ltd [2005] VSC 4 [35]; BHP Billiton Ltd v Schultz [2004] HCA 61; (2004) 221 CLR 400, 422.

[9] T 12, LL 20-25; 13, LL 2-3; 15, LL 23-28.

[14] Spiliada Maritime Corporation v Cansulex Ltd [1987] 1 AC 460, 474.

[17] Affidavit of Caroline Correa sworn 18 November 2015 [4].

[22] [2015] VSC 278.

[24] [2011] VSC 291.

[28] [2004] HCA 61; (2004) 221 CLR 400.

[29] [2011] VSC 291 [14] ('Irwin v Queensland').

[31] [2000] VSC 256 [12] (citations omitted).

[32] Rogers v R (1994) 181 CLR 251, 286.

[33] Affidavit of Caroline Correa sworn 18 November 2015 [3]-[4].

[34] [2015] VSC 278.

[35] [2005] VSC 398 [26].

[36] Section 85(1), Constitution Act 1975 (Vic) and s 138B, Competition and Consumer Act 2010 (Cth).