Neilson v Overseas Projects Corporation of Victoria Ltd

The High Court of Australia heard an appeal concerning a tort claim brought by Mrs Neilson, who suffered injury in the People's Republic of China. Mrs Neilson alleged negligence by Overseas Projects Corporation of Victoria Ltd (OPC). OPC contended that Chinese law was applicable and that under that law, her claim was not actionable or was time-barred, and damages were limited. The trial judge found OPC negligent, awarded damages, and held that Mercantile Mutual Insurance (Australia) Ltd was obliged to indemnify OPC. The Full Court of the Supreme Court of Western Australia overturned this decision, finding that the trial judge had erred in applying Australian domestic law to the tort claim.

The central legal issues before the High Court were whether Article 146 of the General Principles of Civil Law of the People's Republic of China was a relevant part of the lex loci delicti, and if so, whether it mandated the application of the law of the parties' domicile or nationality. The court also considered whether the doctrine of renvoi applied to international tort claims and the principles governing the admission of evidence of foreign law, particularly in cases of deficient evidence.

The High Court, allowing the appeal, reasoned that Article 146 of the General Principles of Civil Law, which states that the law of the place of infringement shall be applied, but that if both parties are nationals or domiciliaries of the same country, the law of their own country or domicile may also be applied, was to be construed as part of the lex loci delicti. The court held that a Chinese court, in exercising its discretion under the second sentence of Article 146, would consider factors that supported the application of Australian law in this instance. The court further determined that the application of Australian law under Article 146 would encompass the entirety of Australian law, including its conflict of laws rules, and would not result in a remission of the controversy back to China. The court found no inconsistency in applying Australian domestic law as the content of the chosen law under Article 146.

The High Court ordered that the appeal be allowed with costs, setting aside the orders of the Full Court of the Supreme Court of Western Australia. The judgment entered at trial in favour of Mrs Neilson and the order for her costs were reinstated, and the appeal to the Full Court against these orders was dismissed with costs.