Case: Regie Nationale des Usines Renault SA v Zhang [2002] HCA 10 ; (2002) 210 CLR 491
Outcome: referred to
the context of a motor vehicle accident in New Caledonia in which a New South Wales resident was seriously injured, Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ said in Regie Nationale des Usines Renault SA v Zhang [2002] HCA 10 ; (2002) 210 CLR 491 at 518 [69] - [70] : 'Two particular questions arise respecting the pleading of foreign law in tort actions. ... The first question is whether it is necessary for the plaintiff to plead the foreign law in order to establish a cause of action. The answer preferred by Dicey is in the negative. In Walker v W A Pickles Pty Ltd , Hutley JA explained: "An action of tort may be brought in New South Wales courts irrespective of where the facts founding the action may have occurred, even if they occurred in a place where there may be no law at all: see Mostyn v Fabrigas . A pleading of a cause of action in tort which did not allege that the facts occurred in any particular law district would be formally valid. On the basis that the utmost economy is enjoined by the rules, it would seem to me that pleading of a foreign element in the initiating process in a claim in tort can never be necessary ... This approach is reinforced by the principle that foreign law, which is, except between the States and the Territories of the Commonwealth, a fact, is presumed to be the same as local law; and a fact presumed to be true does not have to be pleaded: see Supreme Court Rules , Pt 15 , r 10(a)." On the other hand, if the defendant seeks to rely upon a foreign lex causae, then, in the ordinary way, it is for the defendant to allege and prove that law as an exculpatory fact.' (footnotes omitted) Gleeson CJ, McHugh J and Kirby J each found the general presumption that, in the absence of evidence to the contrary, foreign law was the same as Australian law, to be devoid of content in the case before the Court. At 343 [16] Gleeson CJ said: '16 ... I find no assistance in a general presumption that, in the absence of evidence to the contrary, foreign law is the same as Australian law. That might be a rational and practical aid to decision-making in many cases, but, whatever its precise extent, the principle seems to me to be devoid of content in this case. ...' At 396-397 Kirby J said at [202] [204]: '202 The foregoing difficulties, presented by the record, for the ascertainment of the law and practice of China governing Art 146 GPCL, have caused a majority of this Court to invoke a supposed presumption of the common law of evidence. This is to the effect that, in a case where the content of foreign law is significant for the resolution of the issues, and such law is not proved at all or adequately, an Australian court may presume that such law is the same as Australian law. It may decide the case accordingly. 203 Like Gleeson CJ and McHugh J, I derive no assistance from this supposed presumption, at least in a case such as the present. In this case, it involves an unrealistic fiction which has only to be stated for its flaw to be revealed. A presumption that a basic rule of the substantive law of England or some other common law country, in default of proof, is the same as the law of Australia is one that might be justified in a particular case. However, the notion that the law of a country so different, with a legal system so distinct, as China is the same as that of Australia, is completely unconvincing ... 204 With all respect to the majority view, I regard it as straining even credulity to impose on an Australian court the fiction of presuming that the law of China (the place of the wrong), which is an essential element in this case, is the same as the law in Australia. Or that a written law of China would be interpreted and applied by a Chinese court in the same way as an Australian judge would do in construing a similar text.' As I understand the relevant authorities, the general presumption that, in the absence of evidence to the contrary, foreign law is the same as Australian law is not inflexible. Where the law of the forum is governed by a statute and the law within Australia is itself lacking in uniformity, I doubt whether it could be presumed that the defamation law in China, including the Special Administrative Region of Hong Kong, is the same as it is in New South Wales.