Hardaker and Ors v Mana Island Resort (Fiji) Limited and Anor [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)