Rocky Waters of Private International Law

It is not every day that we need to grapple with the application of Private International Law (sometimes known as “Conflicts of Law”).  Yet it was the focus of a recent decision in the New South Wales Supreme Court in Hardaker and Ors v Mana Island Resort (Fiji) Limited and Anor [2018] NSWSC 1863.

Private International Law

Private International Law is a fascinating subject.  It is the law that governs civil disputes between private persons (individuals/entities) that contain an international element.  Where a dispute is between two parties in different countries with different legal systems, private international law helps a court determine which country’s substantive law will be used to decide the matter.  Although it is called “international law” it is a body of domestic law and is distinguished from Public International Law (which is the law governing relations between States).

Tragic backdrop in Hardaker Proceedings

The recent application of Private International Law had a tragic factual backdrop.

The Plaintiffs are Vanessa Hardaker, a widow, and her three young children, from Toongabbie, Sydney.   The family were holidaying in Fiji in 2014 to usher in Vanessa’s 40th birthday.  On the holiday, her late husband, Mark, died in an horrific boating collision off Mana Island.  A fibreglass vessel collided at high speed and fatally struck him in the head.

Compensation to Relatives Proceedings 

Proceedings for compensation to relatives were commenced in the Supreme Court of New South Wales against the holiday resort (Mana Island Resort, a Fijian company) and the boat’s driver (a Fijian man, and who did not have a boat licence).

The proceedings were based in tort (negligence) and contract (breach of implied term of safety) pursuant to the Compensation to Relatives Act 1971 [Cap 29] (Fiji).

Application to Stay Proceedings

The Defendants applied to stay the proceedings (section 67 Civil Procedure Act) on the basis that the forum was inappropriate; thus invoking the principles of Private International Law.   The Defendants argued that the proceedings should not take place in the Supreme Court of New South Wales.   Instead, they contended that the proceedings should be brought in Fiji’s High Court.


The Defendants bore the onus of demonstrating that the Supreme Court of New South Wales is a “clearly inappropriate forum”.

Principles and Legal Test

  • The test involves establishing that the forum is clearly inappropriate 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 (Regie National Des Usines Renault SA v Zhang (2002) 210 CLR 491; Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197).
  • It must be shown that the forum is clearly inappropriate, as distinct from a less appropriate” forum (McGregor v Potts (2005) 68 NSWLR 109).
  • The question to be considered is the inappropriateness of the local forum, not the appropriateness or comparative appropriateness of the suggested foreign forum (Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; Puttick v Tenon Limited (2008) 238 CLR 265).
  • It is a discretionary test (Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197) and involves balancing “connecting factors”.
  • The jurisdiction to grant a stay is to be exercised with great care or extreme caution (Voth v Manildra Flour Mills Pty Limited (1990) 171 CLR 538 at 554).

Connecting Factors

The “connecting factors” that the parties made submissions on included:

  • Place of incident
  • The Residence of the Parties to the Litigation
  • The Number and Location of Witnesses
  • The Law Governing the Claim
  • Financial Position of the Parties

There were compelling arguments made on both sides.  Although there were a variety of real practical impediments that the Defendants faced, they were not considered enough to conclude that the proceedings in New South Wales were oppressive and to the demanding standard expected of the legal test.

For instance, Mana Island Resort was not insured for the claim litigated in New South Wales.  Its insurance policy included a territorial limits exclusion which applied to claims made and actions instituted outside of the Republic of Fiji.  While this was a very real practical consideration, it was not considered to be productive of oppression for the purposes of granting a stay.


The Court concluded that the Supreme Court of New South Wales is not an inappropriate forum for the proceedings.  While the Defendants had pointed to the desirability of the proceedings being heard in Fiji for practical reasons, it was not enough to warrant the stay of the proceedings in New South Wales.


This is a unique website which will require a more modern browser to work!

Please upgrade today!