Scenario 2

Adventure Cruises Pty Ltd. (AC), is a subsidiary of and wholly owned by Festival Group, a US based travel and cruise company. In August, 2021, one of AC's cruise ships, the 'Mermaid of the Seas', travelled from Hawaii to Melbourne, Australia, via New Zealand. Upon arrival in Melbourne, the ship was forced to keep its passengers on board, after a sudden outbreak of COVID-19, and subsequent lockdown by the Victorian government. Unfortunately, the virus had already started to spread on the ship, due to several passengers being infected prior to embarkation. The forced disembarkation restriction, plus the spread onboard lead to several elderly passengers on the Mermaid of the Seas falling ill, with limited medical support.

Miss Jolly Good-Show, a US citizen from Wisconsin, was one of the passengers infected with COVID-19 whilst on the Mermaid of the Seas. She and several other passengers had also fallen ill due to food poisoning on the journey from New Zealand because of contaminated shellfish (partly from careless handling and storage) from the buffet. Further to this, many, including Miss Good-Show, were not able to participate in any tourist activities in Australia and were forced to either isolate or fly back to the US once released. Miss Good-Show and several other fellow US passengers wish to bring a class action in damages for their loss against AC and Festival under the Australian Consumer Law. Both AC and Festival claim that the contracts were formed in the US, and therefore only US law can apply. Also, AC and Festival claim that an 'exclusive jurisdiction clause' in favour of the United States District Courts for the Central District of California and a 'class action waiver clause' in the contract prevent Miss Good-Show and her fellow claimants from making any claims in an Australian court or under the Australian Consumer Law. Festival also refer to a term in the cruise contract providing: 'Festival Group and all its subsidiaries will not be subject to the consumer law guarantees of states outside of the USA'.

Advise Miss Good-Show and her fellow passengers whether those clauses will be considered fair under the Australian Consumer Law and whether they may have a claim under the Australian Consumer Law's 'consumer guarantees'.

Please use case law and/or statute to support your answer.