Hardaker v Mana Island Resort (Fiji) Limited

[2018] NSWSC 1863

Supreme Court

New South Wales

Medium Neutral Citation:	Hardaker and Ors v Mana Island Resort (Fiji) Limited and Anor [2018] NSWSC 1863
Hearing dates:	14 March 2018 (final written submissions on 17 May 2018)
Date of orders:	05 December 2018
Decision date:	05 December 2018
Jurisdiction:	Common Law
Before:	Johnson J
Decision:	1. The Notice of Motion filed on 6 October 2017 is dismissed; 2. The Defendants are to pay the costs of the Plaintiffs with respect to the Notice of Motion.
Catchwords:	PRIVATE INTERNATIONAL LAW - husband and father of Plaintiffs killed in collision between vessels offshore from international resort in Fiji - Plaintiffs commence proceedings in New South Wales - claim for damages against owner of resort and resort employee in charge of vessel involved in collision - Defendants apply for stay of proceedings in New South Wales - application of clearly inappropriate forum test - whether Defendants discharged onus - Defendants failed to establish New South Wales was clearly inappropriate forum - stay refused
Legislation Cited:	Civil Procedure Act 2005 (NSW) Compensation to Relatives Act 1971 [Cap 29] (Fiji) Evidence Act 1995 (NSW) International Regulations for Preventing Collisions at Sea 1972 Limitation Act [Cap 35] (Fiji) Limitation Act 1969 (NSW)
Cases Cited:	Hall v Hillview Limited trading as Outrigger Reef Fiji Resort [2014] NSWSC 377 Hargood v OHTL Public Company Limited [2015] NSWSC 446 James Hardie Industries Pty Limited v Grigor (1998) 45 NSWLR 20 McGregor v Potts (2005) 68 NSWLR 109; [2005] NSWSC 1098 Murakami v Wiryadi (2010) 268 ALR 377; [2010] NSWCA 7 Neilson v Overseas Projects Corporation of Victoria Limited (2005) 223 CLR 331; [2005] HCA 54 Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197; [1998] HCA 32 Puttick v Tenon Limited (2008) 238 CLR 265; [2008] HCA 54 Regie National Des Usines Renault SA v Zhang (2002) 210 CLR 491; [2002] HCA 10 Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; [1990] HCA 55 Wilson v Addu Investments Private Limited [2014] NSWSC 381
Texts Cited:	---
Category:	Procedural and other rulings
Parties:	Vanessa Leigh Hardaker (First Plaintiff) Georgia Hardaker by her next friend Vanessa Leigh Hardaker (Second Plaintiff) Sam Timothy Hardaker by his next friend Vanessa Leigh Hardaker (Third Plaintiff) Jake Timothy Hardaker by his next friend Vanessa Leigh Hardaker (Fourth Plaintiff) Mana Island Resort (Fiji) Limited (trading as Mana Island Resort and Spa) (First Defendant) Jim Bete (Second Defendant)
Representation:	Counsel: Mr DA Wheelahan RFD QC; Mr ARG Johnson (Plaintiffs) Mr M Hutchings (Defendants)   Solicitors: Delfino & Delfino Solicitors (Plaintiffs) Sparke Helmore Lawyers (Defendants)
File Number(s):	2017/143120
Publication restriction:	---

Judgment

1. JOHNSON J: By Notice of Motion filed on 6 October 2017, the Defendants, Mana Island Resort (Fiji) Limited (trading as Mana Island Resort and Spa) (“Mana Island Resort”) and Jim Bete (“Mr Bete”), seek an order under s.67 Civil Procedure Act 2005 (NSW) that determination of proceedings commenced by the First Plaintiff, Vanessa Leigh Hardaker (and her three children), be stayed on grounds that the Supreme Court of New South Wales is an inappropriate forum for the determination of these proceedings.

2. By Statement of Claim filed on 12 May 2017, the First Plaintiff commenced proceedings against Mana Island Resort and Mr Bete following the death of her husband, Mark Hardaker, in a boating collision off Mana Island (part of the Mamanuca Islands of Fiji) in May 2014. The First Plaintiff and her late husband, along with their three children (as the Second, Third and Fourth Plaintiffs), were on holidays at the Mana Island Resort in Fiji at the time of the accident. The First Plaintiff brings proceedings as well as tutor for her three children, Georgina Leigh Hardaker, Sam Timothy Hardaker and Jake Timothy Hardaker.

Hearing of Stay Application

3. The hearing of the stay application proceeded before me on 14 March 2018. Mr DA Wheelahan QC and Mr ARG Johnson of counsel appeared for the Plaintiffs. Mr M Hutchings of counsel appeared for the Defendants.

4. Mr Hutchings informed the Court that his instructing solicitors, who appeared for Mana Island Resort for all purposes, appeared for Mr Bete for the purpose of this application only.

5. Affidavits of Laura Anne Rush sworn 6 October 2017, 2 and 26 February 2018 were read on behalf of the Defendants on the application.

6. The affidavit of Vanessa Leigh Hardaker sworn 6 December 2017 was read in the Plaintiffs’ case on the application.

7. No deponent was required for cross-examination.

8. Written submissions had been furnished by counsel in advance of the hearing of the Notice of Motion.

9. At the commencement of the hearing, Mr Hutchings indicated that further instructions were to be obtained from Mana Island Resort (and its insurer) and Mr Bete upon issues relevant to the Limitation Act [Cap 35] (Fiji), and in particular whether a limitation defence would be raised if the hearing proceeded before the High Court of Fiji.

10. The Court determined to proceed as far as possible with the hearing of the Notice of Motion, with the parties to have an opportunity to furnish further submissions and evidence concerning the limitation issue.

11. Submissions were made by counsel, with the Court making orders at the conclusion of the hearing for the filing and service of further evidence and submissions.

12. Thereafter, Mana Island Resort and Mr Bete filed and served a further affidavit of Laura Anne Rush sworn 4 April 2018, in which it was said that a limitation defence under the Limitation Act [Cap 35] (Fiji) would not be invoked by either Defendant if the hearing proceeded before the High Court of Fiji.

13. Further written submissions for the Plaintiffs dated 17 April 2018 were furnished followed by supplementary submissions for Mana Island Resort and Mr Bete dated 17 May 2018.

Brief Factual Background

14. On 12 May 2014, the Hardaker family arrived at Mana Island Resort to commence a holiday scheduled to conclude on 18 May 2014.

15. On 15 May 2014, Mr Hardaker went on a recreational fishing cruise aboard a vessel named the “Korilagi Flyer” offshore from the Mana Island Resort.

16. The “Korilagi Flyer” collided with another vessel, “MV Gaunavou”, a rescue boat said to be owned by Mana Island Resort and driven by Mr Bete, an employee of Mana Island Resort. Mr Hardaker died as a result of injuries sustained in the collision.

17. Arising from the collision and death of Mr Hardaker, criminal proceedings were brought against Mr Bete in the High Court of Fiji on charges of manslaughter of Mr Hardaker and negligent manoeuvring of a boat causing harm to Mosese Soqeta. Following a trial before Rajasinghe J and three assessors, Mr Bete was found not guilty on both counts on 7 December 2015. The judgment of Rajasinghe J is annexed to the affidavit of Ms Rush sworn 6 October 2017. As Mr Hutchings made clear, the judgment is not tendered as evidence of facts in issue in the proceedings: s.91 Evidence Act 1995 (NSW). Rather, the judgment is in evidence as part of the history of proceedings in Fiji arising from the collision on 15 May 2014.

18. The Court was informed that a prosecution appeal had been filed in the Court of Appeal in Fiji against the judgment acquitting Mr Bete on both counts. It appears that there has not yet been a decision handed down on the prosecution appeal.

The Statement of Claim

19. As noted earlier, the present proceedings were commenced by the filing of a Statement of Claim in this Court on 12 May 2017, shortly before the expiration of the limitation period under the Limitation Act 1969 (NSW).

20. The Statement of Claim identified the following causes of action:

1. A claim in negligence upon the basis that Mana Island Resort owed each member of the Hardaker family a duty to take reasonable care for their safety whilst they were guests of the resort. This included a duty to ensure that Mana Island Resort conducted its operations (including its rescue boat driven by Mr Bete, its employee) in a safe, proper and seaman like manner. The death of Mr Hardaker was due to the negligence of Mana Island Resort, by its agent, Mr Bete, in and about the care, control, management, maintenance and use of the rescue vessel, “MV Gaunavou”.

2. In the alternative, breach of contract between the Plaintiffs and Mana Island Resort. Mr and Mrs Hardaker had entered into a contract with the Mana Island Resort, having paid money for accommodation, entertainment and services at the resort between 12 May 2014 and 18 May 2014. It was an implied term of the contract that Mana Island Resort would conduct its operations (including the operation of the rescue boat driven by its employee, Mr Bete) in a safe, proper and seaman like manner.

21. The proceedings are brought in tort (negligence), contract and pursuant to the Compensation to Relatives Act 1971 [Cap 29] (Fiji).

22. The Plaintiffs submit that the law governing the collision is contained in the International Regulations for Preventing Collisions at Sea 1972 (“COLREGS”). This is an international treaty which has been signed by Australia and Fiji, importing the regulations into the law of each country. The Plaintiffs contend that COLREGS have equal force in Fiji and Australia.

23. Given the present stay application, Mana Island Resort and Mr Bete have not filed a Defence in this jurisdiction. However, Mr Hutchings informed the Court that issues which would be raised by Mana Island Resort would include:

1. a claim that any contract entered into by Mr Hardaker for use of the fishing vessel “Korilagi Flyer” was with a backpacker organisation, and not Mana Island Resort or Mr Bete, and that they took no part in its performance;

2. a claim that, at the time of the collision, Mr Bete was not working nor was he completing any task as a result of, or incidental to, his employment with Mana Island Resort;

3. a claim that, at the time of the collision, the “MV Gaunavou” was not under charter to Mana Island Resort.

Relevant Principles on the Stay Application

24. Mana Island Resort and Mr Bete bear the onus of demonstrating that the Supreme Court of New South Wales is a “clearly inappropriate forum” and that it would be vexatious or oppressive to permit the proceedings to go forward in this State.

25. It has been said that an application for a stay on a “forum non conveniens” basis involves the exercise of a discretion: Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197; [1998] HCA 32 at 247-248; Murakami v Wiryadi (2010) 268 ALR 377; [2010] NSWCA 7 at 386 [33]. A balancing exercise is undertaken, usually by reference to connecting factors, to determine whether the application for a stay has established a sufficient imbalance of the connecting factors so that it can be said that the local forum is a “clearly inappropriate”, as distinct from a “less appropriate”, one: McGregor v Potts (2005) 68 NSWLR 109; [2005] NSWSC 1098 at 119 [43]. Something more than merely balancing relevant considerations is required given the need to apply a “clearly inappropriate” test and not a “less appropriate” test: Murakami v Wiryadi at 388 [53].

26. In Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; [1990] HCA 55, the High Court upheld the principles outlined by Deane J in Oceanic Sun Line Special Shipping Company Inc v Fay for determining whether a stay should be granted on the basis of the local forum being an inappropriate forum.

27. Deane J said in Oceanic Sun Line Special Shipping Company Inc v Fay at 247:

“On that approach, ‘oppressive’ should, in this context, be understood as meaning seriously and unfairly burdensome, prejudicial or damaging while ‘vexatious’ should be understood as meaning productive of serious and unjustified trouble and harassment.”

28. The jurisdiction to grant a stay is to be exercised with great care or extreme caution: Voth v Manildra Flour Mills Pty Limited at 554.

29. The onus is on Mana Island Resort and Mr Bete to demonstrate that a trial in New South Wales would be productive of injustice, because it 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: Regie National Des Usines Renault SA v Zhang (2002) 210 CLR 491; [2002] HCA 10 at 520-521 [78]. The question to be considered is the inappropriateness of the local forum, not the appropriateness or comparative appropriateness of the suggested foreign forum: Vothv Manildra Flour Mills Pty Ltd at 565; Puttick v Tenon Limited (2008) 238 CLR 265; [2008] HCA 54 at 276-277 [27].

30. The circumstance that the governing law of a claim is a foreign law is a significant factor on a stay application: McGregor v Potts at 122 [54]. However, an Australian court cannot be a clearly inappropriate forum merely by virtue of the circumstance that the choice of law rules which apply in the forum require the courts to apply foreign law as the lex causae: Regie National des Usines Renault SA v Zhang at 521 [81].

31. Proof of foreign law in an Australian court involves a matter of fact, not law, and may be proved by expert evidence: Neilson v Overseas Projects Corporation of Victoria Limited (2005) 223 CLR 331; [2005] HCA 54 at 370 [115].

Submissions for Mana Island Resort and Mr Bete

32. Mr Hutchings made submissions by reference to a series of interrelated factors, contending that the Court ought conclude that the proceedings had been commenced in a clearly inappropriate forum. Consideration of so-called “connecting factors” has been recognised as assisting the determination of a stay application: McGregor v Potts at 119 [43]. It is useful to use Mr Hutchings’ headings in this judgment, an approach adopted in similar applications such as the helpful decision of Davies J in Hargood v OHTL Public Company Limited [2015] NSWSC 446 at [31]ff.

The Place of the Incident

33. It was undisputed that the collision causing the death of Mr Hardaker occurred in the coastal waters of Fiji.

34. Mr Hutchings submitted that issues arising out of liability may give rise to the need for a view of the specific location of the collision, with the potential need for expert evidence concerning the location and conditions.

35. It was conceded that these issues were not determinative of the application, but that they required consideration in the necessary balancing exercise.

The Residence of the Parties to the Litigation

36. It was acknowledged that the Plaintiffs are persons ordinarily resident in New South Wales.

37. Mana Island Resort is a corporation registered in Fiji and Mr Bete is a person ordinarily resident in Fiji.

The Number and Location of Witnesses

38. Mr Hutchings noted that the Plaintiffs were not witnesses to the collision so that it is expected that they would only give evidence on issues concerning quantum. It was noted that two Australian witnesses, Saso Jackimovski and Nicolas McGee, were to give evidence for the Plaintiffs.

39. According to the affidavit of Ms Rush of 2 February 2018, 13 witnesses are to be called by Mana Island Resort. It was noted that all of these witnesses (save one) reside in Fiji. Seven of the witnesses are employees of Mana Island Resort.

40. No evidence was adduced as to issues surrounding the availability or willingness of these witnesses to travel to New South Wales. It was submitted, however, that the process available to the Supreme Court to ensure the attendance of witnesses is unclear, in the event of any reluctance on their part.

41. It was submitted that one witness to be called by Mana Island Resort, Ratu Waisale Cava, was in very poor health.

42. Mr Hutchings submitted that the first language of all the witnesses for Mana Island Resort, save one, is Fijian and consequently a translator will be required.

43. Mr Hutchings submitted that Mr Bete was a man of modest means, who did not have the capacity to bear the costs associated with defending proceedings in New South Wales.

44. Counsel submitted that the domicile of the witnesses was a significant matter and that the conduct of the proceedings would be oppressive in the sense of being seriously and unfairly burdensome.

The Law Governing the Claim

45. Mana Island Resort and Mr Bete identified the law of Fiji as the law governing the place of the tort.

46. Mr Hutchings acknowledged that his clients, as the moving parties on this application, bear the onus of demonstrating differences in the principles underlying Fijian tort and New South Wales tort law.

47. Counsel submitted that the application of foreign tort law was a significant factor to be considered on this application: Puttick v Tenon Limited at 277-278 [31].

48. It was submitted that there may be possible conflict of evidence as to the content of the laws of Fiji, in particular the nature of the duty of care owed, the scope and content of the duty and causation based on the application of principles of policy. It was submitted that these issues are influenced by cultural normative values which may reasonably be expected to differ between New South Wales and Fiji: James Hardie Industries Pty Limited v Grigor (1998) 45 NSWLR 20 at 39.

49. Mr Hutchings’ supplementary written submissions dated 17 May 2018 concerned the constitution of the High Court of Fiji. He submitted that, if the proceedings were to continue in New South Wales, the hearing and determination of the claim would involve a wholly different process than if the claim was heard in Fiji. It was submitted that under Order 33, Rule 2 of the High Court Rules 1988 (Fiji), civil proceedings in Fiji may be conducted before a Judge alone, or a Judge with the assistance of assessors.

50. Whilst Mana Island Resort indicated that it would not seek the appointment of assessors if the claim was heard in the High Court of Fiji, Mr Bete declined to make such an election at this time. It was submitted that the prospect of participation of assessors in proceedings conducted in Fiji gave rise to a concept novel to Australian law, and that the absence of the right to have assessors participate in proceedings in New South Wales could result in an injustice to Mr Bete.

51. With respect to the contract claim, it was noted that the Plaintiffs’ claim sought to invoke the law of New South Wales as the proper law of the contract. However, if Fijian contract law was to be applied, Mr Hutchings did not contend there was any difference in the principles to be applied.

52. Finally, concerning the claim under the Compensation to Relatives Act [Cap 29] (Fiji), Mr Hutchings submitted that there appeared to be differences of approach to compensation to relatives under Fijian law and the law of New South Wales.

Financial Position of the Parties

53. Mr Hutchings submitted that Mana Island Resort is not insured for the claim litigated in the current proceedings before this Court. Mana Island Resort’s Policy Schedule with QBE Insurance (Fiji) Limited (Annexure A, affidavit Laura Anne Rush, 6 October 2017) includes a Territorial Limits exclusion (clause 4.14.3) which applies to claims made and actions instituted outside of the Republic of Fiji.

54. Mr Hutchings submitted that this aspect involved evidence of oppression if the stay was not granted and the proceedings were to continue in this Court.

55. It was submitted that Mr Bete did not have the financial means to participate in a hearing held in the Supreme Court of New South Wales. A letter from Mr Bete was provided to the Court along with a payslip from his employer, Mana Island Resort, as evidence of his lack of financial means.

56. Mr Hutchings submitted that the combination of factors relied upon should lead the Court to conclude that New South Wales was a wholly inappropriate forum so that the relief sought in the Notice of Motion should be granted.

Submissions for the Plaintiffs

57. Mr Wheelahan QC submitted that the Plaintiffs had invoked the jurisdiction of the Supreme Court of New South Wales and that they had a prima facie entitlement to continue the proceedings in this Court, in the State where they reside.

57. Submissions were made by reference to the headings used by counsel for Mana Island Resort and Mr Bete.

The Place of the Incident

59. It was submitted that the Plaintiffs reside in New South Wales and have suffered damage in this State.

60. Whilst the collision may have occurred in Fiji, it was submitted for the Plaintiffs that the contract with Mana Island Resort for accommodation and payment was made in New South Wales and the law governing liability for the collision is contained in COLREGS, an international treaty in force in New South Wales and Fiji.

61. Senior Counsel for the Plaintiffs submitted that a view should not be necessary, as the incident had been investigated extensively and there are maps and photographs.

62. The Plaintiffs rely as well on what is said to be an admission made by Mr Bete in the criminal proceedings that he did not see the boat carrying Mr Hardaker (the “Korilagi Flyer”) prior to the collision. The Plaintiffs contend that Mr Bete (in the “MV Gaunavou”) was not in a marked channel and had taken a shortcut, and that if he had kept in the marked channel or kept a proper lookout, the collision would not have occurred. It is said to be a clear breach of Rules 7 and 8 of COLREGS.

The Residence of the Parties

63. The Plaintiffs point to the residence of all Plaintiffs in New South Wales and note the residence of Mr Bete and the corporate location of Mana Island Resort.

Number and Location of Witnesses

64. With respect to issues concerning the availability of witnesses, expense and inconvenience, the Plaintiffs relied upon Hall v Hillview Limited trading as Outrigger Reef Fiji Resort [2014] NSWSC 377 at [9], where Fullerton J considered these issues concerning the calling of witnesses located in Fiji. Without clear evidence before the Court as to the unwillingness of witnesses to attend in person or via audio-visual link, her Honour was not persuaded that the question of availability of witnesses weighed in favour of staying the proceedings. Fullerton J made specific reference to the facilities currently available in the Supreme Court of New South Wales for evidence to be given by witnesses by audio-visual link.

65. The Plaintiffs submitted that a similar conclusion should be reached by the Court on this application.

66. The evidence reveals that all Plaintiffs reside in New South Wales, as do the medical and other professional witnesses to be called in their case, together with the witnesses, Saso Jackimovski (who resides in New South Wales) and Nicolas McGee (who resides in Queensland).

Law Governing the Claim

67. The Plaintiffs submit that the law governing the tort claim is contained in COLREGS, an international treaty adopted by Australia and Fiji.

68. It was submitted that the law governing the contract claim would be the law of New South Wales.

69. In response to Mr Hutchings’ submission that expert evidence may need to be called to resolve any conflict of laws, the Plaintiffs submitted that this process would be no different to the calling of other expert evidence in the proceedings. It was submitted that there was no real scope for cultural norms or differences playing a part in this case involving a collision between vessels. However, any issues surrounding cultural differences or norms could be resolved by the giving of expert evidence or the production of a joint evidentiary report.

70. It was submitted for the Plaintiffs that the possible use of assessors in proceedings in the High Court of Fiji was, at best, speculative as Mana Island Resort would not apply for assessors to sit and Mr Bete had not committed himself on this issue if the case was heard in Fiji. In any event, it was submitted that the constitution of the Court, whether with a Judge alone or with assessors, would not have any bearing upon the issues being determined according to law.

Financial Means of the Parties

71. The Plaintiffs submitted that the financial plight of the First Plaintiff is at least equal to that of Mr Bete. The First Plaintiff is a widow with three children. The deceased was the primary bread winner in the family and the main employee of their trucking business.

72. It was submitted that Mana Island Resort had not provided evidence that the QBE Policy was the only insurance held by the company or that the insurer had denied liability.

73. Finally, the Plaintiffs argued that there was no evidence concerning the financial position of Mana Island Resort, which conducted a large international resort in Fiji.

74. The Plaintiffs submitted that the Notice of Motion should be dismissed with costs.

Decision

75. The Court must consider the issues raised on this application upon the basis that findings made are, of necessity, contingent given the very early stage of the proceedings: Puttick v Tenon Limited at 275 [21]; Murakami v Wiryadi at 391 [66].

76. The present proceedings have been commenced regularly by the Plaintiffs in this jurisdiction, shortly before the expiration of the relevant limitation period in New South Wales.

77. As Mana Island Resort and Mr Bete have stated that no limitation defence would be raised if the proceedings were heard in Fiji, the operation of the Limitation Act [Cap 35] (Fiji) may be put to one side. The Plaintiffs will not face a limitation defence in New South Wales or Fiji.

78. The Plaintiffs’ cause of action in tort involves reliance upon COLREGS. Mana Island Resort and Mr Bete accept that COLREGS has application to this case. It is difficult to see that any local interpretation or gloss of negligence law in Fiji will bear upon the issues to be considered in this case. The claim arises from a collision between two boats offshore from an international tourist resort. There seems little scope for consideration of cultural differences or norms in the circumstances of this case. Mana Island Resort and Mr Bete derive no real assistance from the statements of Spigelman CJ in James Hardie Industries Pty Limited v Grigor at 39.

79. In any event, an Australian court cannot be a clearly inappropriate forum merely by virtue of the circumstance that the choice of law rules which apply requires the Court to apply foreign law: Puttick v Tenon Limited at 277-278 [31]; Hargood v OHTL Public Company Limited at [49].

80. The fact that the tort law to be applied here is Fijian law does not materially assist Mana Island Resort and Mr Bete. This is especially so as it is agreed that the COLREGS appear to have application. As well, Judges in New South Wales are called upon from time to time to apply foreign laws and this is merely a further example of that scenario.

81. The Statement of Claim pleads the claim in contract by reference to the contract between Mr Hardaker and his family and Mana Island Resort for accommodation, food and other services at the resort. Mana Island Resort is to argue that this is not the relevant contract for the purpose of this claim. Rather, it will be argued that the relevant contract was between Mr Hardaker and the backpacker organisation which agreed to allow Mr Hardaker to utilise, for fishing purposes, the “Korilagi Flyer”. Mana Island Resort will argue that this contract is not associated with that company so that a claim in contract against that party cannot be sustained.

82. It may be taken that this area of dispute has been identified and will be litigated at some time in the future by reference to the pleadings as they (by then) will stand. The fact that there is a controversy with respect to the contract claim is not itself a factor which bears significantly upon the present application.

83. It is common ground that the Plaintiffs’ compensation to relatives claim will be determined by reference to Fijian law.

84. It is appropriate to consider the submissions made by reference to the topics addressed by the parties.

The Place of the Incident

85. The incident occurred in the coastal waters of Fiji, offshore from an international resort.

86. Although Mana Island Resort and Mr Bete suggest that a view by the trial Court of the place of the collision may be needed for the purpose of a civil hearing, it is difficult to see this as being a realistic necessity. Photographic and other evidence (including maps) was obtained as part of the police investigation for the purpose of the criminal prosecution of Mr Bete. Apart from the police investigation itself, there was a criminal trial in Fiji arising from the same incident so that there would be a record of the evidence adduced at the trial which may assist the parties to the civil litigation.

87. A view at the time of any civil hearing of the area of the collision would be artificial given the passage of time since the collision on 15 May 2014, and the inability to replicate conditions in a manner which would make a view useful. This aspect does not materially assist Mana Island Resort and Mr Bete on the present application.

The Residence of the Parties to the Litigation

88. The First Plaintiff and her children reside in New South Wales and their medical and other witnesses who would be called at a hearing are likewise residents of New South Wales.

89. Mana Island Resort is a corporation registered in Fiji and Mr Bete ordinarily resides in Fiji.

90. Although these features are relevant to the application, they are effectively neutral.

The Number and Location of Likely Witnesses

91. The First Plaintiff and her children all reside in New South Wales and, according to the affidavit of the First Plaintiff, Saso Jakimovski lives in New South Wales and Nicolas McGee lives in Queensland.

92. It appears that witnesses who would be called by Mana Island Resort are residents of Fiji, including one of the owners of the “MV Gaunavou” who is said to be gravely ill.

93. It is suggested for Mana Island Resort and Mr Bete that the first language of these witnesses (save one) is Fijian so that a translator will be likely to be required. It is noteworthy that the persons to be called for Mana Island Resort were all associated with the international resort occupied by that party. It is not suggested that any of these proposed witnesses cannot speak English at all. To the extent that a translator or interpreter may be required to assist, that can be done readily in New South Wales.

94. It may be taken that facilities exist for the taking of evidence by way of audio-visual link so that any suggested difficulties with witness availability are capable of being overcome in this way: Hall v Hillview Limited trading as Outrigger Reef Fiji Resort at [9]; Wilson v Addu Investments Private Limited [2014] NSWSC 381 at [117]; Hargood v OHTL Public Company Limited at [43].

95. Certainly, there is no evidence that witnesses cannot give evidence by audio-visual link from Fiji.

The Law Governing the Claim

96. I have addressed earlier some aspects related to the law governing the claim.

97. The law of Fiji will apply to the claim in tort (applying COLREGS) and under the Compensation to Relatives Act 1971 (Cap 29) (Fiji).

98. A determination of which law applies to the contract claim may depend upon findings by the trial Judge concerning the relevant contract, given the controversy identified as to whether it was the contract with Mana Island Resort or a contract with the backpacker organisation which is said to have hired the vessel to Mr Hardaker.

99. The prospect that lay assessors may be involved in the determination of the civil claim, if heard in Fiji, appears doubtful at best. Mana Island Resort would not seek that assessors sit in the civil case and Mr Bete merely seeks to keep his options open in this respect if the hearing proceeded in Fiji. It is likely that the parties would agree on a position in this respect, which would be likely to see any trial in Fiji proceed before a Judge sitting alone. That will be the position in a trial in New South Wales.

100. There is no feature of the applicable law to be applied to the Plaintiffs’ claim which operates materially in favour of Mana Island Resort and Mr Bete on the present stay application.

The Financial Position of the Parties

101. The First Plaintiff is a widow with three children residing in premises in New South Wales. The children are now aged 14, 11 and nine years. Mr Hardaker was employed as a truck driver at the time of his death. It has not been submitted for Mana Island Resort and Mr Bete that the First Plaintiff is a person of substantial means.

102. Mana Island Resort operates a substantial international resort in Fiji. Its insurance policy with QBE Insurance (Fiji) Limited provides for a territorial limit with respect to claims made and actions instituted outside the Republic of Fiji. Prima facie, Mana Island Resort would not have its insurance cover if the proceedings are heard and determined in New South Wales.

103. That said, the company operates a substantial international resort and there is no evidence concerning the financial position of the company which may assist an assessment of actual prejudice to that party if the proceedings are litigated without insurance cover. The Defendants bear the onus of proof on the present application.

104. It is a relevant consideration that Mana Island Resort may not have the benefit of its insurance cover if the proceedings are heard in New South Wales: McGregor v Potts at 124 [65]. That said, there is no evidence of impecuniosity or restricted financial means on behalf of the company.

105. Further, the resort conducted by Mana Island Resort involves persons travelling from different parts of the world to stay at the resort and use its facilities. It may be expected readily that if a person staying at the resort is killed or injured, then any civil action arising from that will be likely litigated in the usual place of residence of the family of the deceased guest or the injured guest. Considerations of this type have been mentioned in other cases: Hall v Hillview Limited at [6] Wilson v Addu Investments Private Limited at [122]-[124].

106. The fact that Mr Bete has limited means (as an employee of Mana Island Resort) does not materially assist the stay application. He is represented for the purpose on the present application. If the proceedings remain in New South Wales, Mr Bete may either not appear or may participate in the proceedings or be represented by the same legal team who appear for Mana Island Resort. Of course, it may be that Mana Island Resort will seek to distance itself from Mr Bete so that it is not prepared to be represented jointly with him.

107. If the proceedings were to be heard in Fiji, then Mr Bete may well be unrepresented there because of his apparent impecuniosity.

108. It is relevant, as well, that Mana Island Resort is the party against which the Plaintiffs will seek judgment with a meaningful prospect of recovering any award of damages.

109. I do not consider that Mr Bete’s position bears in any significant way upon the present application.

Conclusion

110. It is for Mana Island Resort and Mr Bete to discharge the onus and establish that New South Wales is a clearly inappropriate forum for these proceedings, and that it would be oppressive (seriously and unfairly burdensome, prejudicial or damaging) and vexatious (productive of serious or unjustifiable trouble and harassment) for them if the proceedings remain in New South Wales.

111. It is not sufficient that Mana Island Resort and Mr Bete point to the desirability of the proceedings being heard in Fiji for practical reasons. It is not for the Plaintiffs to establish that it is appropriate that the proceedings be heard in New South Wales.

112. Having considered the various issues raised on the present application, Mana Island Resort and Mr Bete have failed to demonstrate that New South Wales is a wholly inappropriate forum for this litigation, and that it would be oppressive and vexatious for the proceedings to remain in this jurisdiction.

113. I make the following orders:

1. the Notice of Motion filed on 6 October 2017 is dismissed;

2. the Defendants are to pay the costs of the Plaintiffs with respect to the Notice of Motion.

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Decision last updated: 05 December 2018