Case: Damberg v Damberg [2001] NSWCA 87 ; (2001) 52 NSWLR 492
Outcome: referred to
80 [147]-[148] their Honours said: '[147] The relevant choices [as to the relevant law dealing with the assignment of property in a ship] appear to be the law of the forum, the law of the country of registry as the lex situs (and not merely when the ship is on the high seas), the law of the place of the ship if in another country's territorial waters, and (on one reading of The "Nazym Khikmet" and Vostok Shipping ) the law of the domicile of the registered owner or operator. [148] Given that no evidence of foreign law was adduced in the present case, the question of choice between those sources of law is academic. In the absence of detailed argument on the question, we do not propose to express any concluded views. ...' Then at 80-81 [150] they said: '[150] Since no foreign law has been proved, the issue of the operation of the so-called presumption that foreign law is the same as the law of the forum arises. ... It may be doubted whether an Australian statute in terms directed only to Australian-owned ships is properly the subject of the presumption in these circumstances. In Damberg v Damberg (2001) 52 NSWLR 492; [2001] NSWCA 87 at [118] - [147] Heydon JA (as his Honour then was) examined the authorities on the so-called presumption. That analysis reveals the difficulties of, and disparities in approach to, its application. Some authorities limit the presumption to non-statutory law. Some extend the presumption to statutes. Some, while accepting the presumption as extending to statute law, require that the statute law not be peculiar to local situations or linked to local conditions or to establishing regulatory requirements. Thus, to the extent that statute law can be seen as part of the "general law" of the law of the forum, it will form part of the presumption. See, in particular, the different approaches in Purdom v Pavey &amp; Co (1896) 26 SCR 412; Hellens v Densmore [1957] SCR 768 at 780; Gray v Kerslake [1958] SCR 3; The Ship "Mercury Bell" v Amosin (1986) 27 DLR (4th) 641 and Schnaider v Jaffe [1916] CPD 696, all referred to by Heydon JA in Damberg v Damberg.' Damberg v Damberg [2001] NSWCA 87 ; (2001) 52 NSWLR 492 was a case in which a material consideration was whether in relation to the avoidance or evasion of capital gains tax, German law should be presumed to be the same as Australian law. The leading judgment in the case was that of Heydon JA, as his Honour then was, with which Spigelman CJ and Sheller JA agreed. At 504 505 [112]-[119] his Honour said: '[112] It may be assumed that German tax law in relation to capital gains rests on a statute. The trial judge was not taken to the terms of any relevant German statute. Nor was this Court. All the trial judge was invited to do was assume that German law was identical to Australian law. He was not taken to any statutory provision in Australian law. This Court was not taken to the detail of the relevant Commonwealth legislation. This Court, too, was asked to assume that German and Australian law were the same. ... [113] The content of German law is vital from several points of view. ... [118] A common assumption of the parties was that if German law was not proved as a fact, the court had no alternative but to apply Australian law. Is that assumption sound? [119] The proposition that where foreign law is not proved it will be presumed to be the same as the lex fori is amply supported: ... .' Heydon JA proceeded to cite a number of authorities in support of the presumption and then embarked upon a detailed consideration of Australian, English, Canadian and South African authorities and a number of academic treatises in relation to the presumption. His Honour concluded that it should not be assumed that German law in relation to the avoidance or evasion of capital gains tax was the same as Australian law. His Honour said at 522 [162]: '[162] To state exhaustively when a court will not assume that the unproved provisions of foreign law are identical with those of the lex fori would be a difficult task. It is not necessary to perform it in this case. The issue in this case is whether it should be assumed that German law in relation to the avoidance or evasion of capital gains tax is the same as Australian law. In my opinion it should not. ... German law on the point must be statutory. German law is not a common law-based system. ... There is a risk that there may be special machinery and highly individual provisions in German law as there are in Australian tax law: indeed the only evidence of German law, from Mr Stiegler, suggests that it is quite different from Australian law. Taxation law cannot be assumed to be a field resting on great and broad principles likely to be part of any given legal system.' Whilst the present matter masquerades as one brought under the Trade Practices Act , and the Fair Trading Act , thereby attracting federal jurisdiction, it has been conducted and argued, to all intents and purposes, as a defamation case. However, notwithstanding the emphasis given by the applicants to the matter as a defamation action, it is important to note that the first applicant still maintains its entitlement to injunctive relief under s 80 of the Trade Practices Act and the corresponding s 65 of the Fair Trading Act , restraining the respondents from engaging in 'the misleading and deceptive conduct pleaded in the Second (sic) Further Amended Statement of Claim'. Section 80 of the Trade Practices Act relevantly provided: '80(1) Subject to subsections (1A), (1AAA) and (1B), where, on the application of ... any other person, the Court is satisfied that a person has engaged, or is proposing to engage, in conduct that constitutes or would constitute: (a) a contravention of any of the following provisions: (i) a provision of Part ... V ...; ... (b) attempting to contravene such a provision; (c) aiding, abetting, counselling or procuring a person to contravene such a provision; ... (e) being in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision; ... ... the Court may grant an injunction in such terms as the Court determines to be appropriate. ...' In their 'Defence to Third Further Amended Statement of Claim' the respondents have raised a number of defamation issues not covered by matters of non-admission and denial. These include: (a) If it be found that the matters complained of were defamatory of the applicants as alleged and conveyed any of the imputations alleged, such imputations were: 'substantially true and: i. related to a matter of public interest; or ii. was published under qualified privilege', in respect of publication in New South Wales. (b) In relation to publication of matters complained of in States and Territories of Australia other than New South Wales: 'i. the matters complained of were true in substance and in fact; and ii. further, in respect of the publication of the matters complained of in Queensland, Tasmania and the Australian Capital Territory, such publication was made for the public benefit.' (c) If it be found that the matters complained of were defamatory of the applicants and bore any of the imputations alleged, the matters complained of were: 'published on an occasion of qualified privilege:- i. at common law; ii. pursuant to section 22 of the Defamation Act 1974 (NSW).' (d) For a case in mitigation of damages in relation to the publication of the matters complained of the respondents relied upon: 'i. the bad reputation of the Applicants; ii. the truth of the Applicants' imputations; iii. the truth of the allegations contained in the First, Second and Third matters complained of.' (e) In relation to the publication of the 13 September facsimile in New South Wales, the publication of the ATO letter in New South Wales and the publication of the 15 September email in New South Wales (which did not in fact occur), the respondents, referred to as 'the defendant', have relied upon a number of contextual imputations of and concerning the applicants which they contend were published contextually to each of the applicants' imputations, each of which related to matters of public interest, were matters of substantial truth and related to matters of public interest. The respondents further contend that by reason of the substantial truth of any one or more of the relevant contextual imputations each of the imputations relied upon by the applicants did not further injure the reputation of the applicants. (f) In relation to the publication of the 13 September facsimile, the ATO letter and the 15 September email outside New South Wales, the respondents contended that the publications conveyed certain imputations of and concerning the applicants which were true in substance and in fact and the publication of which was for the public benefit and, by virtue of the substantial truth of them or some of them, the applicants' reputation was not further injured by the imputations for which the applicants contended. Detailed particulars were provided in respect of the matters pleaded in the Defence to Third Further Amended Statement of Claim, occupying about 10 pages of typed script. In their Reply to Defence to Third Further Amended Statement of Clam (sic), the applicants alleged that the respondents were 'actuated by express malice in the publication of the matters complained of in that they were motivated by an ulterior purpose or foreign motive'. Detailed particulars were provided. Having outlined the nature of the proceedings, it is appropriate to now paint the surrounding picture in a little more detail. The first applicant, National Auto Glass Supplies (Australia) Pty Limited ACN 081 814 342, ABN 33 081 814 342, was registered on 2 March 1998. Its directors were Yeung Lo, who is also known as 'Maggie' (the second applicant), Hui Ouyang, who is also known as 'Harvey' (the third applicant), Carl Christian Moller (the third respondent) and Tian He. According to the second applicant, the directors at the time were also the shareholders.