Turkalert hall v hillview

Hall v Hillview Ltd trading as Outrigger Reef Fiji Resort [2014] NSWSC 377 Michael Adie and Alexandra Nash | April 2014 | Insurance & Financial Services

Summary

The facts

On 2 April 2014 the New South Wales Supreme Court dismissed a defendant’s notice of motion to set aside a statement of claim on the grounds of forum non conveniens.

The plaintiff commenced proceedings in the NSW Supreme Court seeking damages for injuries sustained by him when he slipped down the stairs at the Outrigger Reef Resort in Fiji.

The plaintiff, suffered personal injury when he slipped and fell down the stairs at the Outrigger Reef Fiji Resort.

Justice Fullerton held that the defendant had not satisfied the Court that New South Wales was a ‘clearly inappropriate forum’.

Her Honour reiterated that simply because the substantive law to be applied would be the law of a foreign jurisdiction does not mean that the local forum is ‘clearly inappropriate.’ Interestingly, Her Honour noted that due to advances in audio-visual technology, witnesses were now able to give evidence without being in the Court room.

This matter serves as a reminder that the question to be considered is whether or not the forum is ‘clearly inappropriate’. The comparative appropriateness of another forum is not a relevant consideration.

The defendant, an incorporated Fijian company was served with the statement of claim outside Australia in conjunction with rule 11.2 of the Uniform Civil Procedure Rules 2005 NSW (UCPR)

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Trouble in paradise - foreign defendant loses inappropriate forum argument

The defendant filed a notice of motion under UCPR 11.7(1) seeking orders that the service of the statement of claim be set aside on the basis that the Supreme Court of NSW was an inappropriate forum for the trial.

The question to be determined The Court’s enquiry was whether a Court in NSW was an inappropriate forum to hear the matter given the incident and injury occurred in a resort in Fiji.

The defendant had to establish that there was such an imbalance of factors connecting the matter to the Court in NSW that it was an inappropriate forum to hear the matter.

The law assumes that the defendant would suffer vexation and oppression if it were required to litigate in a clearly inappropriate forum.

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Choice of law

The reasoning of the NSWSC

In 2000, the High Court in John Pfeiffer v Rogerson1 began to reassess the previous ‘double actionability’ rule (the Phillips v Eyre rule)2 which stated that for a suit to be brought in the local forum, the wrong had to be actionable in both the place of the wrong and in the forum.

The Court stated that purely because a foreign law operates does not render the local forum inappropriate (as was indicated in the case of Renault). However, a relevant factor is to what extent a local forum will have to interpret the statute of a foreign jurisdiction taking into account the complexities which may arise in foreign legislation.

The High Court held that in interstate torts the “lex loci delicti” (the law of the place of the wrong) is the governing law with respect to torts committed in Australia but which have an interstate element.

The High Court applied this reasoning to international torts in the 2002 decision of Regie Nationale des Usines Renault SA v Zhang3. Renault v Zhang helped eliminate much of the confusion that surrounded choice of law in tort, by rejecting the double actionability test that had been established in Phillips v Eyre, and by concluding that the substantive law to be applied in an international tort is the lex loci delicti.

Therefore the applicable law in Hall v Hillview would be the Occupiers Liability Act (Fiji). Her Honour noted that the limitations which were applicable under Fijian law were the same as those which would apply under the law of NSW.

The test of ‘forum non conveniens’ In Voth v Vildura Mills4 the High Court clarified the test for a finding of “forum non conveniens” (an inconvenient or unsuitable Court). The Court rejected the House of Lords test of Spiliada v Cansulex5 which stated that forum non conveniens would apply if the Court was satisfied that there was some other forum which was the ‘clearly appropriate forum’.

The High Court in Voth stated that the test instead was one where the local court had to be shown to be ‘clearly inappropriate’, causing the proceedings to be vexatious and oppressive if heard in the local forum.

This decision would be determined by weighing up competing factors.

The Court considered the defendant’s argument that the assessment of reasonableness under the Occupiers Liability Act (Fiji) needed to be made in reference to ‘the customs practices and standards prevailing in Fiji”. However, Her Honour stated that she ‘would be surprised if the issue of reasonableness of the defendant’s conduct as an occupier … is likely to be assessed by any different standard than that which applies in many, if not all, common law jurisdictions, including this jurisdiction’.

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Hall v Hillview Ltd trading as Outrigger Reef Fiji Resort [2014] NSWSC 377 Michael Adie & Alexandra Nash | April 2014

Her Honour found that there was nothing in the defendant’s application that demonstrated that the Supreme Court of NSW was ‘clearly inappropriate’.

The defendant argued that the availability of witnesses in Fiji should be taken into account.

However, the Court indicated that the availability of witnesses in a different forum was not a factor which weighed as heavily as it once did, given technological advances such as audio-visual links.

Her Honour did note that if there was evidence that witnesses were unfit to travel or reluctant to give evidence by way of video link then that would lend some weight to the defendant’s argument.

However, no such evidence was presented by the defendants.

The plaintiff, his wife, and his medical experts were all residents of NSW and were all likely to be called to give evidence. Factors raised by the defendant to prove forum non conveniens were that the defendant was incorporated in Fiji and that the incident took place there. Her Honour found that the majority of arguments raised by the defendant were of “neutral weight”.

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The Court held that the defendant had not discharged it’s obligation of demonstrating that the New South Wales Supreme Court was a ‘clearly inappropriate’ forum and the application was dismissed.

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Implications This decision confirms that the test to establish the appropriateness of the court in which proceedings have been issued is whether the court is ‘clearly inappropriate’ or not.

In a time of rapid technological advances, this decision highlights for insurers pursuing recoveries in the name of insureds for losses suffered in foreign jurisdictions that they will increasingly be able to sustain an action in a local forum as technology, including video links, makes the ‘clearly inappropriate’ forum test harder for foreign defendants to overcome.

Michael Adie Senior Associate T: 02 8257 5768 M: 0419 695 887 michael.adie@turkslegal.com.au

Alexandra Nash Lawyer

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Hall v Hillview Ltd trading as Outrigger Reef Fiji Resort [2014] NSWSC 377 Michael Adie & Alexandra Nash | April 2014

John Pfeiffer v Rogerson (2000) 2013 (CLR) 503 Phillips v Eyre (1870) 6 LR QB 1, 3–5) 3 Regie National des Usines Renault SA v Zhang [2002] HCA 10 4 Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 5 Spiliada Maritime Corporation v Cansulex Ltd [1987] 1 AC 460.

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