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.