Supreme Court New South Wales Medium Neutral Citation: Hall v Hillview Ltd trading as Outrigger Reef Fiji Resort [2014] NSWSC 377 Hearing dates: 1/04/2014 Decision date: 02 April 2014 Before: Fullerton J Decision: 1. The defendant's notice of motion is dismissed. 2. The defendant is to pay the plaintiff's costs. Catchwords: PERSONAL INJURY - occupiers' liability - plaintiff injured at resort in Fiji - forum non conveniens - whether local forum clearly inappropriate Legislation Cited: Limitation Act (Fiji) Limitation Act 1969 (NSW) Occupiers' Liability Act (Fiji) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: McGregor v Potts [2005] NSWSC 1098; 68 NSWLR 109 Regie Nationale des Usines Renault SA v Zhang [2002] HCA 10, (2002) 210 CLR 491 Category: Procedural and other rulings Parties: Stephen Hall (Plaintiff) Hillview Ltd trading as Outrigger Reef Fiji Resort (Defendant) Representation: Counsel: I Griscti (Plaintiff) P Herzfeld (Defendant) Solicitors: Gilchrist Connell (Plaintiff) Lander & Rogers (Defendant) File Number(s): 2013/381681 Judgment 1HER HONOUR: On 19 December 2013 the plaintiff commenced proceedings by the filing of the statement of claim in this Court seeking damages for injuries, loss and damage suffered as a consequence of having slipped and fallen whilst descending a set of stairs at a resort in Fiji operated by the defendant. The defendant is incorporated as a company pursuant to the law of Fiji. The plaintiff, who is a resident of New South Wales, sues the defendant as an occupier of the resort at which he sustained his injury whilst a guest of the resort. 2On 27 December 2013 the statement of claim was served on the defendant at its registered offices in Fiji. No issue is taken with the adequacy of service outside Australia, service being authorised by r 11.2 under the Uniform Civil Procedure Rules 2005 (NSW). However, by notice of motion dated 24 January 2014, the defendant seeks an order pursuant to r 11.7(1) that service of the statement of claim be set aside on the basis that the Court is "an inappropriate forum" for the trial of those proceedings. 3The applicable principles were not in dispute. The focus of the enquiry is upon the inappropriateness of this Court, not the appropriateness or comparative appropriateness of the High Court in Fiji. (It was common ground that the High Court of Fiji had jurisdiction to hear the proceedings.) It is not sufficient for the defendant to establish that New South Wales is not as appropriate a forum as Fiji by undertaking some comparative exercise of appropriateness, suitability or convenience. The defendant must demonstrate that there is such an imbalance in the factors that connect or associate the proceedings to New South Wales relative to those that are said to connect or associate the proceedings with Fiji that it is clear that the local forum is "inappropriate". Once there is an imbalance of connecting factors to that degree the law presumes vexation and oppression will be occasioned to the foreign party by requiring it to litigate in a "clearly inappropriate forum" without requiring proof of actual vexation or oppression (see McGregor v Potts [2005] NSWSC 1098; 68 NSWLR 109 at [43]). 4The application of what has been described as the "clearly inappropriate test" also contemplates a trial on all issues extant at the time that the forum question is determined. Approaching the matter on that principled basis requires me to ignore the possibility that as the matter progresses through the pre-trial processes one or more issues might be resolved or narrowed by admissions of fact or concessions of law. Accordingly, I am obliged to assume that questions of liability and of quantum are in issue. 5It was also common ground that, subject only to the agreement of the parties to the contrary (about which there is no evidence) the applicable law, under either of the alternate courses of action pleaded in contract or in tort is, is least on the question of liability, the law of Fiji as provided for in the Occupiers' Liability Act (Fiji). The claim in tort, referable to the defendant's statutory duty under s 4(2) of that Act, was "to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there". In the case of claim in contract the duty was expressed in the same terms, albeit under terms implied in the contract pursuant to s 7(1) of the Act. 6The fact that the lex causae in a proceeding is the law of a foreign country is not of itself such as to render the local forum "clearly inappropriate". It is nevertheless a relevant factor, and in an appropriate case a factor that will, or might, attract considerable weight, depending upon the extent to which it will be necessary for the local court to interpret the statute of a foreign country, and the complexity of issues and concepts to which the foreign statute gives rise (see Regie Nationale des Usines Renault SA v Zhang [2002] HCA 10, (2002) 210 CLR 491 at [81]. It was submitted by the defendant that an assessment of reasonableness under the Occupiers' Liability Act (Fiji) will necessarily be referable to "the customs practices and standards prevailing in Fiji" such that judges of the High Court are best placed to determine the question. This would seem to be a submission appealing to the emphasis Brereton J gave in McGregor v Potts at [55] to "safe employment practices and appropriate professional standards" of veterinarians in veterinary practice in England being a matter which, in his Honour's view, was at the very heart of the case under consideration and, for that reason, a factor ultimately weighing heavily in favour of his Honour's finding that New South Wales was a "clearly an inappropriate forum". For my part, I would be surprised if the issue of the reasonableness of the defendant's conduct as an occupier of a resort hotel in which it conducts its business is likely to be assessed by any different standard than that which obtains in many, if not all, common law jurisdictions, including this jurisdiction. I also take into account that any question of limitation that may arise on the defendant's case would also be subject to the operation of the Limitation Act (Fiji) which provides the same limitation periods as the Limitation Act 1969 (NSW). 7Although the defendant has not filed a defence, the evidence relied upon in support of the motion includes a statement from the cleaner who witnessed the plaintiff's fall and who, it seems, was responsible for cleaning the stairs upon which he fell. Treating, for present purposes, that statement as a proof of the evidence that he would give in the proceedings in the defendant's case, (and ignoring for the moment the question of his availability as a witness - a matter to which I will later refer) it is tolerably clear that the fact and extent of a warning that the stairs were wet (according to the cleaner, he gave both an oral warning to the plaintiff and had placed a "Wet Floor" sign in clear view) bears upon both the question of the reasonableness of the defendant's conduct as occupier, as it does upon any question of contributory negligence should that be available to be pleaded in defence of the claim. 8Unlike the issues of fact and law with which Brereton J was concerned, there is nothing in the issues raised by the plaintiff's statement of claim, that, in my view, go any distance to demonstrating that this Court is clearly an "inappropriate forum" for the ultimate determination of the questions of liability and/or quantum raised by the plaintiff's claim, or that the interpretation of Fijian statute upon which the claim that liability is based, is likely to be such that it could fairly be said that this Court is, for that reason, a "clearly inappropriate forum". 9Counsel for the defendant properly acknowledged that the availability of witnesses, and the expense and inconvenience in this case of the defendant calling witnesses in its case, are less likely to weigh heavily on the question whether this Court is an inappropriate forum than they might have been in the past given the facilities available in this Court for evidence to be given by witnesses in remote locations. It was submitted, however, that was not the case where witnesses who might be called in the defendant's case are not within control of the defendant. It was submitted that because the cleaner who provided a statement on the day of the incident was no longer in the defendant's employ, and for that reason potentially, at least, an unwilling witness, to require the defendant to make an application to take evidence on commission in Fiji would be a time-consuming and expensive procedure. Were there evidence before me that the cleaner was in fact unwilling to give evidence on the defendant's behalf by audiovisual link, or to travel to Australia at the defendant's request and at the defendant's expense, that consideration may have carried some weight on the question as to whether I am satisfied that this court is "clearly an inappropriate forum" within which to conduct the proceedings. There being no evidence to that effect, I do not consider that the question of availability of witnesses who might be called in the defendant's case is a factor that weighs heavily, if at all, on the question under consideration. 10Without detailing the various connecting factors to New South Wales as compared or contrasted with the connecting factors to Fiji, the very great majority of them were, on my assessment, of neutral weight on the question whether this Court has been demonstrated by the defendant to be a "clearly inappropriate forum". In that connection I need only note that of the factors connecting the proceedings to New South Wales include the fact that the plaintiff is ordinarily resident in New South Wales, as are his wife and his medical advisers, as are those that have treated him since sustaining the injury. On the plaintiff's case, detailed evidence from these witnesses is likely to be called given that the claim includes both a claim for loss of income and a claim for domestic assistance). The factors connecting the proceedings to Fiji include the fact that the incident took place in Fiji where the defendant corporation trades and where its assets are located. 11The fact that the defendant has offered to pay the expenses entailed in the plaintiff and his wife returning to Fiji and for their accommodation during the trial may go some way to assuaging the costs that the plaintiff may have to bear for he and his wife to attend the trial. However, the defendant has made no offer to fund the travel expenses associated with a full presentation of his case. In any event, as Brereton J observed, there is always a question of competing cost considerations in cases of this kind such that in virtually every case the question of which of the parties should have the burden of bearing the additional cost of litigation is rarely decisive. 12After taking into account all relevant considerations, I am not persuaded that the defendant has discharged the obligation of demonstrating that the proceedings commenced by the filing of the statement of claim in this Court should be set aside because this Court is a "clearly inappropriate forum" for the resolution of the questions raised by that pleading. 13Accordingly, I make the following orders: 1. The defendant's notice of motion is dismissed. 2. The defendant is to pay the plaintiff's costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 April 2014