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  • The High Court of Australia has unanimously found that a class action waiver clause sought to be invoked in the Ruby Princess class action was an unfair term under the Australian Consumer Law.
  • The decision provides important guidance on the extraterritorial reach of the ACL, class action waiver clauses and exclusive jurisdiction clauses.

In Karpik v Carnival plc [2023] HCA 39 (‘Karpik‘), the appellant Ms Karpik commenced class action proceedings against Carnival and its subsidiary, Princess Cruise Lines, in connection with an outbreak of COVID-19 on the Ruby Princess cruise ship in March 2020.

A significant number of passengers on the voyage had entered into contracts for the cruise in the United States (‘US Passengers‘). Those contracts, governed by Californian law, contained:

  • a class action waiver clause (which required the US Passengers to waive their rights to participate in class actions); and
  • an exclusive jurisdiction clause, in favour of the United States District Courts for the Central District of California.

Relying on both clauses, Carnival applied to stay the claims of the US Passengers. Although Carnival’s application was refused at first instance, the Full Court of the Federal Court declared that the US Passengers’ claims should be stayed on the basis that the terms of the US contracts were enforceable. Ms Karpik appealed this decision to the High Court and was granted special leave.

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