Supreme Court New South Wales Medium Neutral Citation: Wilson v Addu Investments Private Ltd; Lee v Addu Investments Private Ltd [2014] NSWSC 381 Hearing dates: 21/03/2014 Decision date: 09 April 2014 Jurisdiction: Common Law Before: Garling J Decision: (1) The Amended Notices of Motion filed 21 March 2014 be dismissed. (2) Defendants to pay the plaintiffs' costs. Catchwords: PRIVATE INTERNATIONAL LAW - stay of proceedings; application for - forum non conveniens - whether New South Wales is a clearly inappropriate forum for determination of substantive proceedings - whether continuation of proceedings oppressive or vexatious - connecting factors - proper law of tort and contract - evidence of foreign law - availability of relevant witnesses - cost and inconvenience - availability of insurance indemnity - access to justice - impact of adverse psychological effects on plaintiffs if matter litigated in alternative forum - international nature of business offered by defendants - case management considerations. Legislation Cited: Civil Procedure Act 2005 Evidence (Audio and Audio-Visual Links) Act 1988 Supreme Court Rules 1970 Uniform Civil Procedure Rules 2005 Cases Cited: Henry v Henry [1996] HCA 51; (1996) 185 CLR 571 Murakami v Wiryadi [2010] NSWCA 7 Oceanic Sun Line Special Shipping Co Inc v Fay [1988] HCA 32; (1988) 165 CLR 197 Puttick v Tenon Ltd [2008] HCA 54; (2008) 238 CLR 265 Regie Nationale des Usines Renault SA v Zhang [2002] HCA 10; (2002) 210 CLR 491 Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460 Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55; (1990) 171 CLR 538 Texts Cited: Encyclopaedia Britannica Online Edition, updated 14 January 2014 Black & Sadiq, "Good and Bad Sharia: Australia's Mixed Response to Islamic Law" (2011) 34(1) UNSW Law Journal 82 Category: Interlocutory applications Parties: Ben Wilson (P) (2013/83751) Ruby Lee (P) (2013/83743) Addu Investments Private Ltd (D1) (both matters) Silver Sands Private Ltd (D2) (both matters) Representation: Counsel: Dr A Bell SC / S Maybury (P) P Morris SC (D1) D F Villa (D2) Solicitors: Edwards Michael (Plaintiffs) File Number(s): 2013/83751, 2013/83743 Judgment 1On 29 August 2011, Ben Wilson and Ruby Lee suffered personal injury when, whilst passengers on a small sailing boat called the "Love Dhoni" in the Republic of the Maldives, they were thrown into the water as a consequence of a collision with a power boat known as the "Topaz". Mr Wilson and Ms Lee were Australians who were holidaying at the Shangri-La Villingili Resort and Spa ("the Resort"), and had taken a sunset cruise on the sailboat from the Resort. 2On 19 March 2013, in separate proceedings which the Court has ordered, for present purposes, to be heard and determined together, Mr Wilson and Ms Lee each filed a Statement of Claim in substantially identical form. 3The Statements of Claim sued as first defendant, Addu Investments Private Ltd which trades as the Shangri-La Villingili Resort and Spa ("Addu") and, as second defendant, Silver Sands Private Ltd ("Silver Sands"), which is a company apparently contracted by Addu to operate the water activity centre at the Resort. 4Neither of the defendant companies are Australian, nor do they have any office in Australia. 5Each defendant has filed a Notice of Motion (or an Amended Notice of Motion) in each proceeding seeking substantially identical orders. The orders, as finally sought, are these: (1)Pursuant to r 11.7 of the Uniform Civil Procedure Rules 2005, the Court declines to exercise jurisdiction in respect of the Statement of Claim filed on 19 March 2013; or, in the alternative, (2)Pursuant to r 11.7 of the Uniform Civil Procedure Rules 2005, the Statement of Claim be set aside; or, in the alternative, (3)Pursuant to s 67 of the Civil Procedure Act 2005, the proceedings be permanently stayed. Each defendant sought costs. 6The basis of the orders sought was that having regard to all of the facts and circumstances, the Supreme Court of NSW was an inappropriate forum for the hearing and determination of the proceedings. 7For the reasons which follow, I have decided that the Motions ought be dismissed with costs. Causes of Action of the Plaintiff 8The plaintiffs claim damages from Addu on the basis of its negligence and breach of contract. 9As against Silver Sands, the plaintiffs claim damages based solely upon negligence. 10The claim in contract arises because Mr Wilson, on behalf of himself and Ms Lee, made an agreement with the Sales Manager at the Regional Sales Office for Australia and New Zealand of the Shangri-La Hotel Group, of which the Resort is a member, which is based in Sydney. It is alleged, and seems to be so, that the Regional Sales Office for the Shangri-La Hotel Group, which is based in Sydney, is an agent of Addu for the purposes of, at least, accepting bookings and making reservations for guests intending to travel to, and stay at, the Resort, including making reservations for activities which are offered to guests at the Resort. 11In June 2011, Mr Wilson made a booking which was accepted by Shangri-La's Regional Sales Office for Ms Lee and himself to stay at the Resort in the last week of August 2011. It is alleged that such a contract was made in Sydney. 12In July 2011, Mr Wilson made an enquiry from his office in Sydney via email with respect to making a booking for a sunset cruise, which was being offered by the Resort as an activity. 13It is alleged that in July 2011, via email from Mr Wilson in Sydney to the Operations Manager of the Resort, a booking was sought to be made for the sunset cruise on the evening of 28 August 2011 (later varied to 29 August 2011). It is alleged that the booking, which constituted a contractual offer, was accepted by Addu, when the Operations Manager sent an email to Mr Wilson in Sydney on 30 July 2011 confirming the booking. 14It is alleged that the Silver Sands operated the sunset cruise, as a consequence of operating the water activity centre for the Resort. It is alleged that in offering the sunset cruise and conducting it, Silver Sands did so as agent for Addu, which accordingly is liable for any breach of contract caused by their conduct. 15As against each defendant, there is a claim in negligence essentially arising out of the fact of the collision, and particular criticism is made of the way in which the crew of both the motor boat "Topaz", which was owned by Addu, and the sailboat "Love Dhoni", went about navigating and operating the vessels, and as well, identified deficiencies in the vessels themselves. Circumstances of the Boating Accident 16Shortly after the accident, which was investigated by the Maldives Police Service, the police prepared a report of the accident. It contains the following descriptions of what the police established had occurred. It is clear that the police were notified of the accident shortly after it happened, and sent a team of police investigators to the scene of the accident. 17The report includes the following: "The police were informed that two marine vessels had collided at Shangri-La Lagoon on August 29 2011, around 1930 hours. It was found that the two vessels involved were a passenger speed launch called 'Topaz' and a small sailing dhoani (a local wooded boat) called 'Love Dhoni'. The investigation team spoke to ... the captain of the speed launch 'Topaz'. He told the investigators that on August 29 2011, around 1930 hours he was travelling to Shangri-La Resort and Spa from S.S. Gan with the launch crew ... when he realised the speed launch he was driving had hit something. Realising that, [the captain] reversed the vessel and saw the 'Love Dhoni' sinking and two guests in the sea. ... According to [the captain] this incident happened approximately 250 feet away from the last channel light from Shangri-La Resort and Spa. [The captain] informed that while he was driving he did not see the 'Love Dhoni' or any other vessel moving towards the speed launch. ..." According to the captain of the 'Love Dhoni' ... on August 29 2011, around 1750 hours, the 'Love Dhoni' moved towards the Shangri-La Resort and Spa Lagoon to take pictures of sunset with two tourists from the resort. At around 1820 hours they noticed that due to the wind they were not able to enter the lagoon. So they tried to enter the lagoon near the end of the last channel light from the resort. When they reached, a speed launch came with full speed and hit the 'Love Dhoni'. Speed launch later came back and helped the tourists and took them to Shangri-La Resort and Spa. The investigation has found that the 'Love Dhoni' did not have the navigation lights and the captain of the 'Love Dhoni' ... also told there were no navigation lights on 'Love Dhoni'. ... From the investigation of this accident to this date, it has been noted that the 'Love Dhoni' sailed after 1800 hours without navigation lights. And also the 'Love Dhoni' had tried to enter from the channel lights which are used by all other vessels." 18Further investigations were undertaken and concluded by the police on 6 December 2011. That investigation established that the launch "Topaz" was transporting luggage of guests arriving at the Resort. The investigation also established some additional facts to that which had earlier been reported. Insofar as those facts are concerned, the further report said: "The investigation of this case has found that a second speed launch called 'Jade' ... also travelled to Shangri-La Resort and Spa around 1915 hours on 29 August 2011. According to the driver of the 'Jade' launch ..., he travelled to Shangri-La Resort and Spa around 1915 hours on August 29 2011 with the arrival guests, and saw 'Love Dhoni' outside the channel markers. According to him, the only reason he was able to see the 'Love Dhoni' was because he had switched on the search light about 300 feet outside of the channel markers." 19It appears that the launch "Jade" docked and unloaded its guests and was parked at the wharf when it was asked to go to the scene where the accident occurred. The captain of the launch "Jade" informed police that the "Love Dhoni" was sinking "approximately 300 feet outside the channel markers". 20The police investigation went on to conclude with the following: "The investigation of this accident reveals the following as contributory factors for the accident: 'Love Dhoni' was travelling at sea, outside the lagoon without any lights after 1800 hours; 'Love Dhoni' was attempting to enter the lagoon from the same channel used by other vessels, despite not having proper lights that would enable other vessels to see the 'Love Dhoni'; because there were no lights in 'Love Dhoni', the 'Topaz' launch did not see 'Love Dhoni' as it came to enter the lagoon." 21The evidence of Mr Wilson and Ms Lee was that whilst on the sailing boat "Love Dhoni", they were not given any life vests nor was the boat carrying any life vests. They did not see, nor were they aware of, the approaching motor launch. As well, according to Mr Wilson's account, the sailing boat, which was not fitted with any form of motor, was essentially becalmed and there did not appear to be a power boat which was able to come and tow them back to the Resort. 22According to Mr Wilson, immediately before the collision between the motor launch "Topaz" and the sailing boat, he yelled out to Ms Lee and the crew on the sailing boat that they should jump overboard, and try to get out of the way of the oncoming vessel. Mr Wilson was able to enter the water and dive quite deeply. He resurfaced and observed that whilst the hull of the sailing boat was still afloat, it had been very badly damaged and there were pieces of the boat in the water around him. 23He could not find Ms Lee, and began to search for her. As he was swimming around, in the dark, he discovered Ms Lee under the water and brought her back to the surface. She was not breathing. She was assisted onto the remnants of the sailing boat, and was, to all appearances, obviously injured. Mr Wilson commenced performing CPR, which succeeded and Ms Lee opened her eyes and commenced breathing. They were taken back to the shore and both Ms Lee and Mr Wilson were transferred to a hospital in the Maldives. They received treatment at that hospital. 24A short time later, they were both transferred to Singapore for hospital admission. Ms Lee was there operated upon and provided with further treatment. The Injuries and Disabilities of Each Plaintiff 25Since returning to Australia, Mr Wilson has received ongoing treatment from a psychologist and a psychiatrist. He has been unable to work and, as a consequence, has resigned from his travel agent position with his employer. He receives psychological counselling regularly. 26Immediately prior to the accident, Mr Wilson had received a promotion at his work. He anticipated a significant increase in his income. As a consequence of the accident and the trauma which he underwent, Mr Wilson has had to resign his employment. He is currently unemployed, has a small amount of cash in savings and some personal belongings. 27Ms Lee sustained significant orthopaedic injuries which were the subject of surgery in hospital in Singapore. In October 2011, she returned to Australia and commenced treatment at the Royal North Shore Hospital at St Leonards. 28Since that time, she has had a number of surgical procedures at that hospital, dealing with the orthopaedic injuries to her leg, and dealing with a series of complications including infections. She is undergoing ongoing treatment for her orthopaedic injuries including regular physiotherapy. She receives counselling for her psychological symptoms. She has ongoing difficulty with both her left and right leg. She has experienced trouble with her memory since the accident, and has a need to attend physiotherapy and psychological counselling regularly. 29Ms Lee was unable to work for about a year after the accident due to her physical condition, and her need for ongoing medical treatment. Since that time, she has obtained casual work, and works a few days a week. 30In light of some issues raised by the Notices of Motion, it is convenient to set out in summary form, the opinions of the clinical psychologist with respect to each of the plaintiffs. 31In a report of 18 March 2014, Mr Alex Caterjian, expresses the following view with respect to Mr Wilson: "The impact of the August 2011 event in the Maldives has caused significant emotional and psychological difficulties for Mr Wilson. He is unable to function optimally subsequent to the event in question, experiences regular flashback events, high levels of anxiety around triggering events, reduced mood following realisation of limitations faced, and the guilt of his circumstances. He has relinquished a financially beneficial role within his current place of employment as a consequence of his psychological and emotional instabilities, and experiences ongoing triggers while undertaking his current role, resulting in impulse control related issues, cognitive disturbances and mood difficulties. ... It is my opinion that Mr Wilson is experiencing symptoms of anxiety and depression consistent with a diagnosis of post-traumatic stress triggered by the events of 29 August 2011. It is also my opinion that Mr Wilson's current emotional state has impacted on his current circumstances, particularly with the withdrawal and lack of career progression with his former employer, and the self termination of his employment due to the inability to effectively manage the psychological disturbances he experiences on a daily basis." 32Mr Caterjian was asked to express an opinion with respect to the prospect of Mr Wilson returning to the Maldives and the effect that such a return trip may have on his psychological wellbeing. Of that, he said this: "Based on my discussions with, and observations of, Mr Wilson, it is my opinion that there would be significant emotional destabilisation should he return to the Maldives at this point in time. It is likely that his mental state will deteriorate and his symptomology will involve classic symptoms of trauma including revivication, derealisation, physiological stress and cognitive dissonance." 33Mr Caterjian recommended that Mr Wilson avoid travelling to the Maldives. 34Mr Caterjian also provided a report dated 18 March 2014, with respect to Ms Lee. He did not express any opinion upon her orthopaedic injuries except to note that they had occurred, and that by the time of his report, according to Ms Lee, she had undergone 14 operations. 35Of Ms Lee's presentation to him, he said this: "Ms Lee's presentation is consistent with symptomology of depression and anxiety perpetuated by the re-emergence of emotional memories of childhood traumas as triggered by the boating accident in the Maldives in 2011. During consultations, Ms Lee has on a number of occasions become tearful recounting the events of the incident in the Maldives, her childhood experiences and the difficulties she faces in relation to her health and future employment prospects ... The impact of the August 2011 event in the Maldives and the subsequent medical events including the complications, have caused emotional and psychological difficulties for Ms Lee. She is unable to function optimally subsequent to the events both physically and emotionally, experiencing regular flashback, high levels of anxiety in unrelated contexts, and mood disturbances following realisations of limitations faced by her financial and physical circumstances, and the impacts on her partner, Mr Wilson. ... ... It is my opinion that Ms Lee is experiencing symptoms consistent with anxiety and secondary depression triggered by the events of 29 August 2011. It is also my opinion that Ms Lee's current emotional state has further become complicated impacting on her current circumstances and reprising memories of childhood experiences." 36Mr Caterjian expressed a similar conclusion to that which he expressed for Mr Wilson with respect to the desirability of Ms Lee returning to the Maldives, and the effect it may have upon her. 37As neither Mr Wilson nor Ms Lee were challenged by cross-examination on their evidence on any of these matters, I have accepted their evidence, and drawn upon it with respect to the matters set out above. Addu's Evidence on the Motion 38The evidence relied upon by Addu was given, largely on information and belief, by Addu's solicitor, Mr Lucas. He was cross-examined by senior counsel for the plaintiffs. There are some uncontroversial facts. The first is that Addu owns 70 per cent of, and operates, the Resort in the Maldives. It is a Maldivian company which does not itself operate or conduct business in NSW, and has no assets in NSW. 39Addu has a contractual relationship with Silver Sands, whereby Silver Sands operates the water activity centre at the Resort ("the Agreement"). The Agreement is in evidence before the Court, together with an Amending Agreement. The governing law of the Agreement is the law of the Republic of Maldives. 40The Agreement also includes an arbitration clause which provides that where the parties are unable to resolve any dispute arising out of the Agreement amicably, the dispute is to be submitted for final resolution at the Singapore International Arbitration Centre, for arbitration by a single arbitrator, in the English language, in accordance with the UNCITRAL Rules. 41The Agreement obliges Silver Sands to operate the water activity centre in accordance with the standards and policies of the Resort. Addu is entitled to measure and audit the quality of services provided by the water activity centre. 42The revenue obtained from the water activity centre is shared between the two defendants in agreed percentages. 43Any staff employed at the water activity centre were required to be approved by Addu and were to be properly attired to the general standard and style of the Resort in uniforms provided by the Resort. The staff were obliged to abide, at all times, by the staff rules and regulations fixed by the Resort, and to undertake such training as the Resort provided. 44The Agreement also includes this clause, namely, that Silver Sands: "shall be responsible for all insurance, including coverage for public liability (the public liability insurance coverage shall be US$5 million), personal injuries, damage to the resort operator, in connection with the services provided by the dive school manager and shall indemnify the resort operator and its affiliate and their respective directors, officers, employees and agents for and against all claims, suits or actions for compensation or otherwise, for death, physical or mental injury to any person and for loss of or damage to property arising out of or in connection with the services provided by the dive school manager." 45In September 2010, an Amending Agreement was entered into by both parties. The terms of that Amending Agreement are not of any importance to the present proceedings, except that the Amending Agreement makes it apparent, at least as at September 2010, that the water activity centre had available to it, not just the sailing boat upon which the plaintiffs were at the time of their accident, but also a number of other boats which are powered and which were capable of going out to tow the becalmed sailing boat back to shore, including a 4.5 metre inflatable boat with a 30HP outboard motor, which was specifically designated as a rescue boat. 46Mr Lucas' evidence establishes that, to the extent that there are any eyewitnesses to happening of the accident, they are living in the Maldives. Each of the crew members on the motorboat "Topaz", at the time of the collision, remain employed by Addu. Mr Lucas accepts that they are subject to all reasonable directions of Addu, including any with respect to giving evidence. 47Although Mr Lucas claimed in his affidavit that there were 11 other individuals who were likely to be called by Addu to give lay evidence about the accident, I am not satisfied that that will necessarily be so. Mr Lucas' broadly expressed opinion in his affidavit that the first defendant's case was likely to include 15 lay witnesses was, as appeared from cross-examination, unsoundly based. He did not have any descriptions of the accident from these witnesses; he did not have any proofs of evidence from these witnesses; and he had never conducted, or caused to be conducted, conferences to satisfy himself that there was any relevant evidence that these witnesses could give. 48I accept that the Captain and three crew members of the motorboat "Topaz", which was involved in the collision, may be likely to have some relevant evidence which they could give. As to the other named witnesses, I am wholly unpersuaded, on the evidence before me, that they have any relevant evidence to give. It is possible that those on board the speedboat called "Jade" may be able to say something relevant, but that is not a matter upon which I can reach a positive conclusion. 49The broad-based claim by Mr Lucas as to what the lay witness case will be for Addu in respect of liability is simply not made out. 50Equally, Mr Lucas expressed the view that, based upon what he had been told by Mr Eggle, the General Manager of the Resort, that: "... it would impose a major financial burden and inconvenience on Addu Investments to have the above witnesses attend a trial in Australia." 51I am unable to accept that this is so and, as will be discussed later, there are methods available to the Court that may ameliorate any inconvenience or burden caused to the defendants by having to call witnesses from the Maldives. 52I have no doubt Mr Lucas was told that by Mr Eggle. However, the statement is wholly unpersuasive. Mr Lucas conceded in cross-examination that Addu is indemnified by a Hong Kong-based insurer with respect to this claim. He did not know the limit of that coverage, but did not give any evidence which suggested that the limit of indemnity would be inadequate to enable the proceedings to be properly defended, by bringing such witnesses to Australia as may be necessary. 53As well, leaving aside any question of the availability of an indemnity from an insurer, and simply concentrating on the position with respect to Addu itself, such an opinion is expressed by Mr Lucas, albeit on information and belief, without either he, or so far as the evidence reveals, Mr Eggle, knowing what the assets and liabilities of Addu are; what its cash flow by way of income and expenditure in any given period is; what the cost to it would be of transporting some or all of these witnesses to Australia; and how such cost would, in light of its own financial position, impact in any way in the slightest with respect to its balance sheet. Without this material being revealed, it is not possible to conclude that there is a "major financial burden" suffered by Addu. 54I am wholly unpersuaded that the financial resources of a company which owns 70 per cent of a Resort, which is a part of a large international hotel group, Shangri-La, and which is marketed as a "luxury" or "high end" holiday location, and which has seemingly adequate insurance coverage with respect to this litigation, can properly be said to have a major financial burden imposed on it by having to bring a number of people to Australia to give evidence. 55Mr Lucas also deposes to the fact that the proceedings would involve the application of the law of the Maldives, and: "It will be necessary to retain an expert in Maldivian contract and personal injury law, and that person would also likely to be domiciled in the Maldives. This will impose additional costs and inconvenience Addu Investments." 56It is no doubt correct that if proceedings continue in this Court, Addu will need to retain such an expert. However, Mr Lucas' statement is not well-founded. He discloses no cost estimate for retaining such an expert. He does not set out whether such an expert would need to travel to Australia, and if so, what the cost might be. Quite how Addu would be inconvenienced is not explained or justified. 57Again, he makes no reference to the existence of an insurance indemnity. I am unpersuaded by any suggestion of "additional costs and inconvenience" to Addu. 58Mr Lucas also gave some evidence, again on information and belief, with respect to the law of the Maldives. In his affidavit he said: "33. I am informed by Shuaib Shah, a Partner at Shah, Hussain & Co., Barristers and Attorneys, based in the Maldives Island, and verily believe that: a. the system of law in the Maldives is not highly developed; b. Maldives contract law has not yet developed or evolved to such an extent that there are clear, accurate and concrete rules of contract constructions; c. however, a common sense approach is taken by judges to the interpretation of commercial documents; d. in order to determine the meaning or legal effect of a particular term, the whole contract must be construed; e. Maldives tort law has not yet developed or evolved to such an extent that there are clear, accurate and concrete rules providing for proportionate liability or contribution between concurrent wrongdoers (in tort); and f. in a tort case, a judge will typically apportion liability based on his or her own individual discretionary views, taking into account the totality of the facts of the case." 59With the exception of the contents of the Constitution of the Republic of Maldives, this is the only evidence as to the law of the Maldives which might be applicable to these proceedings. Evidence for Silver Sands 60The evidence with respect to Silver Sands' position was given by Mr Finn, a solicitor, again, largely on information and belief. Mr Finn's source of information and belief is Mr Hussain Ali, the Managing Director of Silver Sands. 61It appears that Silver Sands is a Maldivian company and does not carry on any business in Australia. Mr Finn's information is that Silver Sands owns the "Love Dhoni", and the motorboat "Topaz", which collided with "Love Dhoni", is owned by the Resort. 62Mr Finn, in cross-examination, accepted that the "Love Dhoni" did not have any lights on it, nor was it powered. Mr Finn deposes to the fact that the two crew members of the "Love Dhoni" are both residents of the Maldives. He also deposes to the fact that one of them no longer works for Silver Sands. 63He also says that it will be necessary for two expert witnesses to be retained: first, an expert in Maldivian law, and secondly, a Maldivian nautical expert who would provide evidence as to the content and application of Maldivian maritime laws. He says that both of these experts are likely to be domiciled in the Maldives. 64Mr Finn deposes to the fact that he believes it will be necessary for him, and for counsel retained for the second defendant, to travel to the Maldives to settle the evidence necessary to defend the claim. 65He also says, based upon what Mr Ali has told him, that it would: "impose a major financial burden on Silver Sands to have the above witnesses, and any other Maldivian witnesses, attend a hearing in Sydney." 66In cross-examination, it was revealed that, to the best of Mr Finn's knowledge, Silver Sands has insurance coverage. He expressed this view based upon the fact that he had received instructions from a firm of lawyers who are located in Germany, and that he understands that that firm receives its instructions from an insurer based in Germany. 67Mr Finn was unable to tell the Court what the nature or extent of the insurance cover was. He was not informed on the limit of indemnity available. He did not know whether indemnity has been granted. 68He had not conferred with, nor seen a proof of evidence from, either of the crew members of the "Love Dhoni". It follows that it remains, at this stage, only a possibility, rather than a likelihood, that these gentlemen will be called to give evidence. 69Mr Finn has not seen any financial statements of Silver Sands, and his evidence is silent as to whether Mr Ali has done so. The opinion reported to him by Mr Ali, that there would be a "major financial burden" on Silver Sands if there was a hearing in Sydney, is of little weight in the absence of details of the financial status of the company, including any references to the nature and amount of insurance indemnity available. Legal Principles 70All parties accept that the legal principles to be applied are those to be found under the rubric of forum non conveniens. 71In Oceanic Sun Line Special Shipping Co Inc v Fay [1988] HCA 32; (1988) 165 CLR 197, the High Court of Australia dealt with a forum non conveniens application. Deane J said at 248: "The power [to grant a stay] should only be exercised in a clear case and the onus lies upon the defendant to satisfy the local court in which the particular proceedings have been instituted that it is so inappropriate a forum for the determination that their continuation would be oppressive and vexatious to him." 72Earlier in his judgment, at 247, his Honour had said that: " '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." 73In Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55; (1990) 171 CLR 538, the plurality judgment of Mason CJ, Deane, Dawson and Gaudron JJ, considered what was to be drawn from the various judgments in Oceanic Sun Line. At 554, their Honours said: "... we should state very briefly what we take to be the common ground between them. First, a plaintiff who has regularly invoked the jurisdiction of a court has a prima facie right to insist upon its exercise. Secondly, the traditional power to stay proceedings which have been regularly commenced, on inappropriate forum grounds, is to be exercised in accordance with the general principle empowering a court to dismiss or stay proceedings which are oppressive, vexatious or an abuse of process, and the rationale for the exercise of the power to stay is the avoidance of injustice between parties in the particular case. Thirdly, the mere fact that the balance of convenience favours another jurisdiction, or that some other jurisdiction would provide a more appropriate forum, does not justify the dismissal of the action or the grant of a stay. Finally, the jurisdiction to grant a stay or dismiss the action is to be exercised 'with great care' or 'extreme caution'." 74At 564, their Honours also said: "It follows that, subject to the question of onus discussed in the preceding paragraph, the principles to be applied in applications to set aside service and in applications for a stay on inappropriate forum grounds, are those stated by Deane J in Oceanic Sun [at 247-248]." 75It is not in doubt, now, that the clearly inappropriate forum test enunciated by Deane J in Oceanic Sun Line is the correct test: see Henry v Henry [1996] HCA 51; (1996) 185 CLR 571 at 575 per Brennan CJ, and at 587 per Dawson, Gaudron, McHugh and Gummow JJ. The plurality said: "In Voth, this Court adopted for Australia the test propounded by Deane J in Oceanic Sun, namely, that a stay should be granted if the local court is a clearly inappropriate forum, which will be the case if continuation of the proceedings in that court would be oppressive in the sense of 'seriously and unfairly burdensome, prejudicial or damaging', or, vexatious, in the sense of 'productive and serious and unjustified trouble and harassment'." (footnotes omitted). 76In 2002, the High Court returned to consider the issue again with respect to a claim brought in the Supreme Court of NSW arising out of an overseas tort. In Regie Nationale des Usines Renault SA v Zhang [2002] HCA 10; (2002) 210 CLR 491, the Court considered the claim made by Mr Zhang with respect to injuries sustained in a motor vehicle accident in New Caledonia. The case also involved consideration of Pt 10 r 6A of the Supreme Court Rules 1970, which is in all relevant respects, identical to r 11.7 of the Uniform Civil Procedure Rules 2005 (the "UCPR") with respect to the capacity of the Court to grant a stay of proceedings, or else to set aside the originating process. That rule uses the phrase that this Court is "an inappropriate forum for the trial of the proceedings". 77The plurality (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) said, at [24], that the expression "inappropriate forum" is less emphatic than the expression "clearly inappropriate forum", which is the term adopted in Voth to determine whether an Australian court should decline to exercise its jurisdiction. However, it then considered whether, in substance, the test ought be any different. 78At [78], in considering the approach of the primary judge, the plurality judgment said: "Rather, it was the task of the Renault companies, as applicants on the motion, to demonstrate that a trial in NSW would be productive of injustice, because it would be oppressive in the sense of being seriously and unfairly burdensome, prejudicial or damaging, or vexatious in the sense of productive of serious and unjustified trouble and harassment." 79There, their Honours were applying the test as set out in Voth. Their Honours went on to say, at [81], this: "An Australian court cannot be a clearly inappropriate forum merely by virtue of the circumstance that the choice of law rules which apply on the forum require its courts to apply foreign law as the lex causae." 80Most recently, the High Court considered the issue in the matter of Puttick v Tenon Ltd [2008] HCA 54; (2008) 238 CLR 265. At [27] of the plurality judgment, French CJ, Gummow, Hayne and Kiefel JJ said: "In Voth ..., the Court held that a defendant will ordinarily be entitled to a permanent stay of proceedings instituted against it and regularly served upon it within the jurisdiction, if the defendant persuades the local court that, having regard to the circumstances of the particular case, and the availability of an alternative foreign forum, to whose jurisdiction the defendant is amenable, the local court is a clearly inappropriate forum for the determination of dispute." 81As Puttick noted, the reasons of the plurality in Voth pointed out that the focus must be: "upon the inappropriateness of the local court and not the appropriateness or comparative appropriateness of the suggested foreign forum." First Defendant's Submissions 82Addu submits that all of the events relevant to liability took place in the Maldives. It submits that all of the witnesses relevant to liability, other than the plaintiffs themselves, reside in the Maldives. It submitted that to the extent that the plaintiffs were able to give evidence on the question of liability, their evidence would largely be about matters that are not likely to be in dispute: namely, that the sailing boat had no motor, it was dark or approaching dark, the boat had no navigation lights or other illumination, and was drifting. 83Addu submits that none of the Maldivian witnesses would be compellable to give evidence in proceedings in the Supreme Court of NSW, and that since not all of them are employees of Addu, the inability to compel the witnesses to give evidence may provide an injustice to Addu. 84In addition, Addu points to the fact that the relevant maritime law will be the law of the Maldives, and the relevant tort law will be the proper law of the Maldives. 85Addu submits that it is a matter of controversy as to whether the law of the contractual claim will be the law of Australia or of the Maldives, insofar as the claim is made by the plaintiffs in reliance of a cause of action for a breach of contract. Insofar as the claim is made as between the two defendants, if cross-claims are in due course filed, then Addu notes that the proper law of the contract between those two parties is the law of the Maldives. 86Addu submits that such is the level of uncertainty about the law of the Maldives, which it submits is still a developing law, the need to prove it as a fact would "... introduce additional levels of complexity, expense and uncertainty together with the risk of error in the application of foreign law": see Murakami v Wiryadi [2010] NSWCA 7 at [150]. 87To the extent that the plaintiffs have suffered injury and damage in NSW, Addu submits that it might be reasonably anticipated that the medical experts would not need to be compelled to assist the plaintiffs in their case, and would co-operate in the provision of evidence via audio-visual link or Skype to any court with appropriate jurisdiction in the Maldives. 88Addu also points to the fact that a judgment of this Court would not be enforceable in the Maldives. 89Finally, Addu put its submission, in summary, in this way: "Liability is clearly the most contentious issue in the matters. It is submitted that a trial [in] NSW focussed upon a determination of liability in relation to events on a dark night off the coast in the Maldives would be unfairly burdensome and prejudicial to Shangri-La and/or vexatious in the sense of it producing serious and unjustified trouble and harassment. Such a trial would not allow the detailed analysis of facts surrounding the collision which would be necessary properly to determine fault. This clear inappropriateness of this jurisdiction, it is submitted, is not counter-balanced by the fact that the plaintiffs have continued to suffer damage in NSW, or the fact that their lawyers have obtained medico-legal reports." Second Defendant's Submissions 90Silver Sands submitted that in this matter, the connecting factors with the Maldives were substantial. It submitted that first, the locus of all of the relevant acts and omissions, and the physical injuries sustained by each of the plaintiffs, was in the Maldives. 91Secondly, it submitted that it was beyond reasonable argument that the applicable law in terms of determining liability would be the law of the Maldives. It also submitted that the probabilities are that the applicable law of the determination of damages is also the law of the Maldives. It submitted that it would not be a simple task for a judge of the Supreme Court of NSW to determine what the foreign law was as it applied to this case because: (a)the law itself was in a state of development; and (b)because Article 10 of the Constitution of the Republic of the Maldives provides that the legal system in the Maldives is to be based upon the tenets of Islam, which meant that the Maldives law would be substantially and significantly different from the nature of the laws applied in NSW. 92Thirdly, Silver Sands submitted that the significant factual issues raised by the Statement of Claim would necessitate adducing evidence which had a substantial connection with the Maldives including what the reasonableness of the conduct of the various crew members of the launch "Topaz" were in all the circumstances; whether the crew members of "Love Dhoni" were adequately trained in accordance with local standards; and, whether the deficiencies with respect to the "Love Dhoni" and its lighting are matters which were regarded as reasonable or unreasonable according to the standards in place in the Maldives. In addition, Silver Sands pointed to the fact that the navigational standards which needed to be applied, are those of the Maldives. Silver Sands pointed to the fact that resolution of these particular issues would involve evidence being largely adduced from witnesses who reside in the Maldives. 93As well, Silver Sands pointed to the fact that there are only very few connecting factors with NSW. They acknowledge that the plaintiffs were resident in NSW, that their medical witnesses were resident in NSW, and that the consequences of their injuries were experienced in NSW. However, they submitted that the case was one in which there was a significant nexus with the Maldives, and only a slender one with NSW. Accordingly, the connection in NSW was sufficiently tenuous that the Court would reach the conclusion that the Supreme Court of NSW was a clearly inappropriate forum. Plaintiff's Submissions 94The plaintiffs submitted that the Supreme Court of NSW was not a clearly inappropriate forum. The plaintiffs highlighted the following matters: (a)that with the exception of the surgeon, Dr Singh, who operated upon Ms Lee when she was in hospital in Singapore, all of the evidence with respect to the plaintiffs' injuries, loss and damage, which are in the plaintiffs' submissions matters of complexity and importance, come from within Australia. The bulk of these witnesses are medical practitioners and, in the case of Mr Caterjian, a clinical psychologist. The plaintiffs submit that the cost of transporting, accommodating and compensating those witnesses, were they required to give evidence in the Maldives, would be significant and completely beyond their financial means. The plaintiffs pointed out that there was no material of any kind which would enable this Court to conclude that the court of appropriate jurisdiction in the Maldives had a procedure which enabled these witnesses to give their evidence either by audio-visual link, or else to have their evidence taken on commission in Australia, and tendered in proceedings in the Maldives; (b)having regard to the circumstances of the accident, namely that the plaintiffs were passengers on a boat which was involved in a collision with another boat, in circumstances where no one suggests that the plaintiffs were in any way at fault for what occurred, the real issue on liability was not whether the plaintiffs would succeed, but rather whether the liability ought be apportioned to one or other or both of the defendants. Hence, the plaintiffs submitted that there was no serious question in their claims with respect to liability, and that the principal focus of the evidence in their case would relate to the extent of their injuries and their respective claims for economic loss, which they submitted were significant, and which would largely be dealt with by evidence in Australia; (c)insofar as there was any dispute between the first and second defendants with respect to who is to be held liable, and if so, in what proportion, to the extent that the defendants did not resolve that dispute between themselves, the plaintiffs submitted that it was open to either of them to have that question addressed by arbitration in accordance with their Agreement, which arbitration would be held in English and at the Singapore International Arbitration Centre. The plaintiff pointed to that fact as indicating that there was no certainty that there would be any cross-claims being heard and determined in this Court, and further that it could not properly be argued by the defendants that it was seriously inconvenient and burdensome to have the determination of their liability heard outside of the Maldives when, according to their own Agreement, they had agreed to have a determination of any dispute between them adjudicated in the Singapore International Arbitration Centre; (d)whilst the plaintiffs accepted that there may be a few individuals who may be needed to be called by the defendants with respect to liability, being those who were eyewitnesses to the various events, the fact that those witnesses may have to travel to Australia could not be regarded as creating any undue burden on the defendants. As well, the plaintiffs pointed to the fact that this Court has available to it the capacity to require that evidence be taken on commission in the Maldives pursuant to the Evidence on Commission Act 1995, or the UCPR, so that any inconvenience could be realistically minimised or, alternatively, that the Court can take evidence by audio-visual link in accordance with the provisions of the Evidence (Audio and Audio-Visual Links) Act 1988; (e)insofar as the hearing of the case involved questions of foreign law, the plaintiffs submitted that on the evidence, to which I have referred above, the law of the Maldives did not appear to be particularly complex but, rather, if anything, appeared to be reasonably in alignment with local law. The plaintiffs submitted that, as well, the defendants had not chosen to put on any particular evidence by an expert on the law of the Maldives which may have revealed that the application of the particular facts and circumstances by reference to Maldivian law would be complex and productive of debate and complexity and confusion, even if applied by experts in the law of the Maldives such that a judge of this Court required to apply the foreign law would find that a particularly difficult task. At best, the plaintiffs submitted, it appeared that the application of the law of the Maldives required merely a good deal of common sense, which, they submitted, would not demonstrate any good reason to regard this Court as being a clearly inappropriate forum; (f)the plaintiffs submitted that their lack of financial means, which has been addressed in the circumstances of this case by the retention of a solicitor who is prepared to appear for them on a basis that the solicitor funds the costs of litigation locally, but would not be prepared to fund the costs of the proceedings in the Maldives, demonstrates that the plaintiffs could not readily have access to lawyers in the Maldives in order to bring proceedings there, and that having regard to these favourable arrangements for access to justice, it could not be said that this Court is a clearly inappropriate forum. The plaintiffs pointed to the fact that each of the defendants, which were companies of substance, and each of which had the benefit of indemnity from an insurance company that had already retained lawyers in NSW, could not be said to suffer from the same prejudice; and (g)finally, the plaintiffs submitted that the evidence of Mr Caterjian about the adverse psychological consequences to each of them from being compelled to return to the Maldives for the purpose of conducting their litigation, where such circumstances would not exist if the litigation is conducted in NSW, provided a powerful reason why this Court is not a clearly inappropriate forum. Discernment 95There is a very great degree of attraction to Lord Templeman's view which his Lordship expressed in his speech in Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460 at 465, where he suggested that applications of this kind should be largely decided by judges in chambers. 96The plurality judgment in Voth seemed also to embrace this approach, where their Honours said at 565: "As regards both kinds of application and subject to one qualification, we respectfully agree with the substance of the advice contained in the speech of Lord Templeman in Spiliada, namely, that the primary judge should 'be allowed to study the evidence and refresh' his or her memory of the relevant law 'in the quiet [of his or her chambers] without expense to the parties'; that or she should not be burdened by unhelpful reference to other decisions on other facts; and 'that submissions will be measured in hours and not days'. The qualification is that we think that, in the ordinary case, counsel should be able to furnish the primary judge with any necessary assistance by a short, written (preferably agreed) summary, identification of relevant connecting factors and by oral submissions measured in minutes rather than hours. There may well be circumstances in which the primary judge may conclude that it is desirable to give detailed reasons balancing the particular weight to be given to the presence or absence of particular connecting factors and explaining why the local forum is or is not a clearly inappropriate one. Ordinarily, however, it would be unnecessary for the primary judge to do more than briefly indicate that, having examined the material in evidence, and having taken account of the competing written and oral submissions, he or she is of the view that the proceedings should or should not be stayed on forum non-convenience (i.e. 'clearly inappropriate forum') grounds." 97As I said at the commencement of this judgment, I am of the view, having examined the evidence and having taken into account the competing submissions, that the proceedings should not be stayed on the grounds that the Supreme Court of NSW is an inappropriate forum. 98However, notwithstanding the encouragement of Lord Templeman and the plurality in Voth, I should state the reasons upon which this conclusion is based. Foreign Law 99These proceedings undoubtedly involve questions of the application of both Australian and Maldivian law. Insofar as any question of determination of a claim based in negligence is concerned, it was common ground that the law of the Maldives will apply. The evidence does not reveal with any precision, or in any detail, what the law of torts of the Maldives is. The evidence does not suggest that the law is any different in substance from the local law. All the evidence suggests is that, as yet, in Maldivian tort law, there are no clear, accurate and concrete rules providing for proportionate liability or contribution between concurrent wrongdoers in tort. To the extent that liability is apportioned, that will be done in an individual discretionary way, no doubt on the basis of what the judge thinks, having regard to the circumstances, would be just and fair. 100There is no reason to think, from this evidence, that the application of Maldivian tort law would provide any complexity at all to the facts found relating to liability. 101Insofar as the plaintiffs base their cause of action in contract, as it seems to me on the evidence before the Court, I am not persuaded, as each of the defendants contend, that the law of the Maldives would necessarily apply. On the contrary, it is my view that, on the probabilities, the contract for accommodation and for the provision of the sunset cruise on the "Love Dhoni" was concluded between the plaintiffs and Addu in Australia, which is a relevant factor in considering the proper law of the contract. 102Whether the proper law of the contract is Australian or not will very much depend upon all of the facts proved at trial. Whilst it is not possible to form a concluded view on that question, my present conclusion, for the purposes of this Motion, is that it is likely that the proper law of the contract will be Australian law. 103If I am wrong in this conclusion, and insofar as the contract is subject to the law of the Maldives, I accept that the Maldivian contract law has not yet developed or evolved to such an extent that there are clear, accurate and concrete rules of contractual construction. However, I do note that a common sense approach is taken by judges in the interpretation of commercial documents, which does not markedly differ from the rules for interpreting contractual documents in Australia. 104In essence, this does not seem to me to provide any particular complexity with respect to the application of contract law in the event that the Court is persuaded that the proper law of the Maldives is to be applied to the contractual relationship between the plaintiffs and Addu. The Constitution of the Republic of the Maldives 105Counsel for Silver Sands tendered an English language version of the Maldivian Constitution. He did so to support a submission that the nature of the law of the Maldives was very different from the local law, and that, accordingly, this Court was a clearly inappropriate forum. 106No expert evidence was tendered by Silver Sands on the question of the application of the Constitution or how it should be interpreted. 107Counsel drew attention to two provisions. The first, Article 10, provides that the religion of Islam "shall be one of the basis of all the laws of the Maldives". The second, Article 142, is in the following terms: "142. The Judges are independent, and subject only to the Constitution and the Law. When deciding matters on which the Constitution or the Law is silent, Judges must consider Islamic Shari'ah." 108It can be accepted as common knowledge that Islamic Shari'ah is a reference to the Islamic law which constitutes a: "... divinely ordained path of conduct that guides Muslims towards a practical expression of religious conviction whilst they are alive, with a goal of divine favour in the world to come." See Encyclopaedia Britannica (Online Edition updated 14 January 2014). 109Equally, it can be accepted as common knowledge that questions have arisen, in particular circumstances, as to the compatibility of Islamic Shari'ah with Australian law: see Black & Sadiq, "Good and Bad Sharia: Australia's Mixed Response to Islamic Law" (2011) 34(1) UNSW Law Journal 82. 110However, without expert evidence as to how the provision in the Constitution may relate to, or impact upon, the Maldivian law which applies to the facts, matters and circumstances of this case, I am unable to draw the conclusion urged upon me by counsel for Silver Sands. The Court is left with a vacuum, as there is a complete absence of evidence which suggests that if Islamic Shari'ah applied to the circumstances here, then a significantly different approach would be required. 111Accordingly, I am unable to conclude by reference to the Constitution of the Republic of Maldives that it has any bearing at all on the issue of whether this Court is a clearly inappropriate forum to hear these proceedings. Commercial Agreement between the Defendants 112To the extent that the contractual relationship between the first and second defendants is relevant, it is far from clear to me that, at the moment, any dispute between the first and second defendants, insofar as it may exist, would in fact be litigated in these proceedings. It would be open to the defendants, and neither disclaimed this intention by evidence in these proceedings, to have their disputes arbitrated at the Singapore International Arbitration Centre. 113To the extent, however, that the defendants choose to have their cross-claim determined in these proceedings, then the approach taken to the interpretation of commercial documents seems, on the evidence provided in this application, to largely or in substance, mirror the approach taken in respect of commercial contracts in Australian law. Availability and Convenience of Witnesses 114Insofar as the question of the availability of witnesses is concerned, the most relevant witnesses on the issue of liability live in the Maldives. They are, with one exception (namely one of the crew members of the "Love Dhoni" formerly employed by Silver Sands), all currently employed by either the first or the second defendant. These relevant witnesses are those who were the crew members of the two boats involved in the collision. To the extent that there are crew members involved in the other motor boat which was in the vicinity at the time, namely the "Jade", then from the evidence, it appears that they remain in the employ of Addu. 115Whilst, if these witnesses had to come to Sydney, there would be a degree of cost and expense involved, and with respect to one or other of the witnesses, there may be a difficulty in securing their attendance, I am not satisfied that this demonstrates that the Supreme Court of NSW is a clearly inappropriate forum. This Court has available to it extensive powers to obtain evidence from individual witnesses in foreign countries in a way which enables that evidence to be obtained in a cost-effective, and in the least inconvenient, manner. 116The Court has the power to appoint a commissioner to take evidence on oath. That commissioner could take the evidence in the Maldives at a time and place convenient to the local witnesses. I can see no difficulty in the first and second defendants, should they choose to call the witnesses, accessing the provision of their evidence in that way. Equally, the Court can, if it is properly persuaded to do so, and appropriate approvals can be granted, itself take evidence in the Maldives. 117The Court has the power to take evidence by audio-visual link or telephone and in those circumstances, whilst I accept that there may be an additional cost to bringing witnesses to Australia, and there may be some inconvenience to those witnesses in doing so, such cost and inconvenience can be significantly ameliorated or mitigated by the procedures available to this Court. 118As well, the evidence does not permit me to conclude that the cost, expense and difficulty of bringing any witnesses to Australia is such that it would demonstrate that the Supreme Court of NSW is a clearly inappropriate forum. Both defendants are indemnified so far as the evidence presently appears. There is no sufficient evidence presently before me that the defendants are completely unable financially to afford to bring witnesses to Australia, whether they are indemnified or not. Access to Justice 119The plaintiffs' access to justice in this Court, which is not the same as it would be with a Maldivian court, is also a matter of relevance in this case. The unchallenged evidence is that the plaintiffs' lawyers are prepared to act for the plaintiffs on the basis that the plaintiffs do not have to fund the litigation in this Court. As well, the plaintiffs' solicitors are acting on what can be conveniently described as a "no win, no fee" basis, namely, that they will not charge the plaintiffs if the plaintiffs are unsuccessful. 120The plaintiffs have each deposed to the fact, without challenge, that they do not have lawyers retained in the Maldives; that they cannot presently afford to retain lawyers in the Maldives; and that their lawyers are unwilling to fund the retention of any lawyer in the Maldives as part of their current arrangements and retainer. I infer from this that there are significantly more difficulties with accessing the justice system in the Maldives for these plaintiffs than there are in Australia. In other words, litigation in Australia is realistically the most likely forum for these plaintiffs to litigate in. On the other hand, both defendants have access to lawyers in each jurisdiction. 121As well, I take into account the unchallenged expert opinion of the plaintiffs' psychologists that for them to go to the Maldives to conduct litigation would have an adverse psychological effect upon them. This is a factor to be weighed in considering whether the Supreme Court of NSW is a clearly inappropriate forum. Both of these factors, namely, access to justice and access to a court system which does not carry with it the degree of adverse psychological effect as it would in the Maldives, are relevant in this particular case. They demonstrate that, contrary to the submissions of the defendants, this forum is an appropriate one for the plaintiffs. The Circumstances of the Defendants 122One may equally weigh up the consideration as to whether the forum is an inappropriate one for the defendants to face litigation. So far as Addu is concerned, it is part of a worldwide, well-recognised and well-known chain of luxury hotels and resorts, the Shangri-La Group. It advertises for, and seeks to encourage, Australians to make bookings at the Resort and to visit there. It encourages Australian visitors who are guests to use all of the Resort's facilities, including the water activity centre. 123It seems that there can be little doubt that it is in the commercial interests of Addu to attract Australian guests and to encourage them to visit the Shangri-La Resort in the Maldives. It must be obvious to the officers of Addu that if an international guest sustains injury, let alone serious injury, the likelihood is they will return to their country of origin to obtain treatment or else continue to live their lives in their familiar surroundings. This is the natural consequence, and an incident of, their residence being in a foreign country: see Voth at 571. 124Part of the business of Addu is to deal with international guests and to encourage them to leave their country, come to the Shangri-La Resort in the Maldives for a short holiday, and return to their country. The notion that there might be litigation in a foreign country is, in the unlikely event that arises, a not unexpected integer of the business plan and enterprise of Addu. 125Whilst I accept that a court of appropriate jurisdiction in the Maldives may be more convenient to Addu than proceedings in the Supreme Court of NSW, I cannot accept, particularly having regard to the features to which I have just drawn attention, that Addu can legitimately complain that a court, which is the local court of an international visitor, is clearly inappropriate, merely because it is geographically remote from the Maldives, and is a foreign court and is not a court in the Maldives. 126I accept that Silver Sands is not engaged in worldwide operations. I accept that it has no control over who comes to the Resort and who accesses its services. Nevertheless, it is in a business where it provides services to international guests at the Resort in the Maldives. It must accept that part of those business services includes dealing with sick or injured guests, whose illness or injury arise out of the water activity centre, and who have returned to their country of origin. 127Again, whilst I am well satisfied that for Silver Sands to litigate in a court of appropriate jurisdiction in the Maldives would be far more convenient than for it to litigate in this Court, I am not persuaded that it is clearly inappropriate for Silver Sands to be required to conduct litigation in this Court. Enforceability of an Australian Judgment 128Addu submitted that any judgment obtained against it in this Court would not be enforceable against it in the Maldives. It submitted that this was so because of the absence of any bilateral treaty and domestic legislation which permitted recognition of the judgment of an Australian court. 129The plaintiffs submitted that the absence of any treaty and domestic legislation does not of itself provide a bar to enforcement of a foreign judgment. They submitted that the judgment would be able to be enforced, and provided as an example that Australian judgments can be enforced in the United States of America notwithstanding the absence of a treaty and domestic legislation recognising an Australian entitlement to enforce a judgment. 130It is unnecessary to resolve this question of enforceability for two reasons. First, it is difficult to imagine that any judgment in this Court, if one ultimately issued, would not be given effect to by at least Addu, a company which advertises for business in Australia, in circumstances where it is insured for this claim, by, I assume, a reputable insurer. I have a similar difficulty in contemplating that the German-based insurer that indemnifies Silver Sands would ignore a judgment of this Court. 131Secondly, and persuasively, if there be an inability to enforce the judgment of this Court in the Maldives, that is a direct consequence of the fact that the plaintiffs have chosen to litigate the matters in this Court. It is they who are prepared to bring their claim, and maintain it, in this Court, thereby taking the risk on the issue of enforceability. If the ultimate judgment is unenforceable and the defendants decline to comply with it, then it is hard to see that the defendants are able to say that the proceedings would be seriously and unfairly burdensome, prejudicial or damaging. 132I am satisfied that this submission of Addu does not carry any great weight in considering the issues raised in the Motion. Conclusion 133This Court has adequate powers and facilities to enable the conduct of litigation which has international elements to it. It does so in a way which furthers the overriding purpose of the Court, namely, to ensure the just, quick and cheap determination of the real issues in the proceedings. It has broad powers of case management which enable particular issues to be determined promptly and without undue complexity. 134It has powers which would enable the costs and expense of obtaining evidence in the Maldives to be ameliorated to the greatest extent possible. It also has the capacity to accept evidence of foreign law, and as part of its common law tradition, to give effect to that evidence in accordance with the principles which are applicable. As well, although there may be some complex factual evidence about what happened and who might be at fault, the Court is well experienced in dealing with such complex factual circumstances. 135I am wholly unpersuaded that this Court is a clearly inappropriate forum, and there is no basis for the Court to exercise the powers which it is given by r 11.7 of the UCPR to proceed either to stay this litigation or make some other like order, on the basis that the Court is an inappropriate forum. Summary 136In summary, for the reasons which have been given, the Motions of the defendants must each be dismissed. Orders 137I make the following orders: (1)The Amended Notices of Motion filed 21 March 2014 be dismissed. (2)Defendants to pay the plaintiffs' 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: 10 April 2014