Hardaker and Ors v Mana Island Resort (Fiji) Limited and Anor [2018] NSWSC 1863

Hardaker and Ors v Mana Island Resort (Fiji) Limited and Anor [2018] NSWSC 1863

The Defendants did not discharge their onus of showing that New South Wales was a clearly inappropriate forum. Although the collision occurred in Fiji and Fijian law applied to the tort and compensation to relatives claims, COLREGS was accepted to apply, foreign law could be dealt with in the New South Wales proceedings, a view in Fiji was not shown to be necessary, witness issues could be managed including by audio-visual link and interpreters, the residence factors were effectively neutral, the possible use of assessors in Fiji was doubtful, and Mana Island Resort had not proved actual financial prejudice despite a possible insurance territorial exclusion. The proceedings were therefore...

Jurisdiction
Australia
Judgment Date
05 December 2018
Procedural Posture
Application for Stay of New South Wales Proceedings on Clearly Inappropriate Forum Grounds / Notice of Motion Filed on 6 October 2017 Heard Before Trial
Outcome
Notice of Motion dismissed; stay refused.
Legal Topics
['forum Non Conveniens' 'clearly Inappropriate Forum' 'stay of Proceedings' 'choice of Law' 'foreign Law' 'audio Visual Link Evidence' 'international Regulations for Preventing Collisions at Sea 1972']
['private International Law' 'civil Procedure' 'negligence' 'contract' 'maritime Law' 'compensation to Relatives'] ['forum Non Conveniens' 'clearly Inappropriate Forum' 'stay of Proceedings' 'choice of Law' 'foreign Law' 'audio Visual Link Evidence' 'international Regulations for Preventing Collisions at Sea 1972']

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Procedural Posture

Application for Stay of New South Wales Proceedings on Clearly Inappropriate Forum Grounds / Notice of Motion Filed on 6 October 2017 Heard Before Trial

Legal Issues

  1. 1 ['Whether the Supreme Court of New South Wales was a clearly inappropriate forum for proceedings arising from a boating collision in Fiji.' 'Whether permitting the proceedings to continue in New South Wales would be oppressive or vexatious to the Defendants.' 'What weight should be given to the place of the incident, residence of parties, location and language of witnesses, applicable Fijian law and COLREGS, and the financial and insurance position of the parties.']

Ratio Decidendi

The Defendants did not discharge their onus of showing that New South Wales was a clearly inappropriate forum. Although the collision occurred in Fiji and Fijian law applied to the tort and compensation to relatives claims, COLREGS was accepted to apply, foreign law could be dealt with in the New South Wales proceedings, a view in Fiji was not shown to be necessary, witness issues could be managed including by audio-visual link and interpreters, the residence factors were effectively neutral, the possible use of assessors in Fiji was doubtful, and Mana Island Resort had not proved actual financial prejudice despite a possible insurance territorial exclusion. The proceedings were therefore...

Court Disposition

Notice of Motion dismissed; stay refused.

Orders

  • ['The Notice of Motion filed on 6 October 2017 is dismissed.' 'The Defendants are to pay the costs of the Plaintiffs with respect to the Notice of Motion.']