Regie National Des Usines Renault SA & Anor v Zhang

[2001] HCATrans 246

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S9 of 2001

B e t w e e n -

REGIE NATIONAL des USINES RENAULT SA and RENAULT AUTOMOBILES SA

Appellants

and

FUZU ZHANG

Respondent

GLEESON CJ
GAUDRON J
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 9 AUGUST 2001 AT 11.07 AM

(Continued from 8/8/01)

Copyright in the High Court of Australia

GLEESON CJ:   Yes, Mr Margo.

MR MARGO:   May it please the Court.  My learned friend agrees that he will not complain if I have not been sat down prior to 3.45 and I have agreed that I will try and sit down at 3.30.  The respondent has more ground to cover than the appellants in this matter and it will be difficult to get to everything in oral submission.  That was foreseen when a chamber summons was taken out seeking leave to put on more extended submissions.  I mention that matter only because we do place more reliance on our written submissions than simply as foreshadowing what is to be said in oral argument and also to pray for the Court’s indulgence for making more reference to the written submissions in my presentation than might otherwise have been necessary.

As far as foreign law is concerned, I raised an unnecessary difficulty last night in response to your Honour Justice Callinan’s question.  There is authority that if an expert witness is referred to sections of a Code or law the court may look at those sections but may not look at other sections without the assistance of experts or hearing from counsel.

CALLINAN J:   What is that case?

MR MARGO:   It is Concha v Murrieta (1889) 40 Ch D 543 at 549 and the bit about not doing own researches is Bumper Development Corporation Ltd v The Commissioner of Police of the Metropolis (1991) 4 All ER 638 at 646, a decision of the English Court of Appeal.

CALLINAN J:   Mr Margo, just in relation to that – this may seem an elementary question – but the presumption in the absence of evidence to the contrary that the foreign law is the same as the local law, does that presumption include the statute law of the forum, the local forum?  You might give some time to think about that.

MR MARGO:   My impression is it does, your Honour.  Where the presumption is made about continuing law in a settled country or the like that would exclude any assumption that that law includes amendments made by statute in the forum but as applied in an everyday case it would include all the local law is our understanding.

CALLINAN J:   Including, or example, contribution legislation in New South Wales.

MR MARGO:   Yes.

CALLINAN J:   So the presumption in the absence of evidence to the contrary would be that French law permitted obliged courts to make an apportionment in the case of contributory negligence.  You may want to think about that.

MR MARGO:   That is our understanding, your Honour, that it applies for all purposes – certainly in New South Wales.

KIRBY J:   Mr Margo, you will remember at the end of yesterday I asked Mr Walker, after we had gone and spent so much time working through Phillips v Eyre, about the conceptualisation of the issue and rather than simply looking at it as a matter of legal authority because apparently this Court has never itself embraced Phillips v Eyre specially in an international tort.  Do you, first, contest that this Court has not embraced and accepted and applied Phillips v Eyre in an international setting, and, secondly, do your written submissions anywhere indicate what other countries of the common law world, other than England, which we have spent a lot of time looking at, have done in vis-à-vis Phillips v Eyre in a context like this?  South Africa, for instance, and Malaysia and Singapore, or other countries, have they departed from Phillips v Eyre or do they still follow it?  If they still follow it that may well be a reason why we should.

MR MARGO:   I am not able to assist your Honour on the countries to which your Honour has just referred.  In England it has been partially abolished.

KIRBY J:   I know that and we have spent so much time on England that I am pretty aware of that, but what about Ireland?  What about other common law countries?  I mean, England is now just one jurisdiction.

MR MARGO:   The Law Reform and Scottish Law Reform Commission reports contained recommendations relating to the extension of the reform to Ireland.  My understanding is Dr Bell may be able to assist that, in fact, it has been implemented also for Ireland.  I do not know about the Republic of Ireland.

KIRBY J:   I saw it in the footnotes – I have not yet followed up of Professor Juenger, Professor Nygh and so on and I will look at those, but sometime I would be grateful if somebody would give me some help on what has happened to Phillips v Eyre in a context like this in other common law or semi‑common law countries than England and Canada, because we know Canada.

MR MARGO:   We might be able to give your Honour some assistance later in the day.  I am not able to as I stand here at the moment.

KIRBY J:   South Africa might be interesting.

MR MARGO:   Yes, your Honour.  It was not referred to in Lubbe, although that case was ‑ ‑ ‑

KIRBY J:   I know, but we should be looking at other jurisdictions, not just England.

MR MARGO:   Yes.  The pleading matter that your Honour Justice Gummow raised, we would agree with the appellants that the Court should not base its decision solely on a pleading matter.  The pleadings ‑ ‑ ‑

GUMMOW J:   What else is it?  There is no trial.

MR MARGO:   There may be some doubt in a tort context the extent to which the parties can, by convention on the pleadings, decide the law.  Your Honour would know more about that than ourselves, but there is also the possibility – that is my main purpose for mentioning this point – that the statement of claim would be amended.  It has not been so far.  May I say on the pleading point that paragraph 16 to which your Honour referred, one reading of it – and I am not able to assist further on what was intended – is that it is relating to the paragraphs which follow it – that is at page 5 in the first appeal book – that 16 is to be read with 17 through to 20 and that the law that the pleader was intending to refer to is that referred to in paragraph 17 and following, and I simply draw your Honours’ attention to the fact that it is not simply a quasi‑contractual relationship that is there pleaded, but it is either:

a quasi-contractual relationship and/or a relationship which, as a consequence of the operation of the governing law, gave rise to –

direct obligations from the ‑ ‑ ‑

GUMMOW J:   Yes, I read 17 as referring back to 16, when it uses the phrase “operation of the governing law”, in line 3 on 17. 

MR MARGO:   Yes.  As your Honour pleases. 

GUMMOW J:   That is what I understand the pleader was doing.  And then I understand 20 as relating back to 17, and thus to 16. 

CALLINAN J:   Mr Margo, can I ask you one question.  Is New Caledonia part of France?  It is not a colony, is it?  It is part of France? 

MR MARGO:   Your Honour, that is an issue on the appeal.  The evidence was that it is a territory of France.  There was an affidavit which referred to it as a department, but that was not from an expert witness.  The experts called it a territory, and that was as far as it went.  It was not explained what that status was internationally, or what consequences it had for the legal system.  It is unchallenged evidence that the three provisions of the code to which your Honours were taken yesterday apply in New Caledonia.  There is no evidence as to whether decisions of the Cour de Cassation, or other European law that might affect application of those provisions, apply in New Caledonia or not.  The matter is completely void of any detail, and it is one of our submissions that that is a matter that ought to have been taken into account in deciding what weight to give the possible application of French law. 

GAUDRON J:   Is there not an affidavit, though, saying that French law applies? 

MR MARGO:   French law applicable to ‑ ‑ ‑

GAUDRON J:   In New Caledonia.  The reference in the affidavit is to the Code Civil, is it not? 

MR MARGO:   It is to three provisions of the Code Civil, and it is said, by way of preface, that the law relating to road traffic accidents is the same in New Caledonia as in France. 

GAUDRON J:   Yes.  And that a judge could come from France, if necessary. 

MR MARGO:   Yes.  And there is no evidence that a judge could go the other way.  We have collected the evidence for your Honours in our submissions; it is under contention 2 in our notice of contention.  I will come to that in a moment.  But we certainly dispute that it has been established that New Caledonia can be treated for all purposes as a part of France, or that the two jurisdictions can be equated.  We do that as a matter of legal system, but also the geographical separation and its impact on the considerations the Court has to have when considering a clearly inappropriate forum. 

It is also clear evidence, your Honours - Justice Gaudron, that the appellants had to submit to the jurisdiction of the courts of New Caledonia, and it has not been contested that they have no legal presence there.  This is a Voth case, in the respondent’s submissions, not a Phillips v Eyre case; and we respectfully draw your Honours’ attention to the fact that no part of the statement of facts in the respondent’s submissions – that is from paragraphs 8 through to 36 – has tested by the appellants’ ‑ ‑ ‑

KIRBY J:   Could I just interrupt to say, on those last points that you made, that you quite properly draw our attention to how this rule operates in your case, because that is a nice, concrete case.  But we have to think of the rule as it might operate in Uzbekistan, or in Azerbaijan, or in other places – that an accident happens there, and then the person who may not even be a resident or citizen comes to Australia, and because they suffered continuing damage in Australia, have the damage here, you see.  So whilst it is important to concretize the issue by reference to the sorts of considerations you have mentioned, the rule must apply in all sorts of countries whose legal regimes may not be evil, but just unknown, and who have defendants who say, “I think you should require this case to be dealt with in my country, because that is where it happened, and that is the law that I know”. 

MR MARGO:   Undoubtedly.  We do rely heavily on the consequence of the pleading rule in New South Wales in this particular case.  I appreciate that your Honours have to grapple with wider policy issues.  I think that is what I was trying to address when I understand your Honours referred to literature on foreign law for policy purposes yesterday, as opposed to its being treated as evidence in this case.

I will come to Phillips v Eyre, but the submissions I primarily wish to put are on the notice of contention, and against the possibility that I will run out of time I wish to go to those first unless your Honours direct me to do otherwise.

GLEESON CJ:   No, you go in your own course.

MR MARGO:   May I just take your Honours to some of the facts.  I will not read them all but in paragraph 8 of the respondent’s submissions, matters of common cause of, and they include Phillips v Eyre, they include jurisdiction, and they include effective service.  There was no challenge to service out of the jurisdiction in this case.  The appellants are large multi‑national corporations.  I have mentioned already they have no connection whatever or legal presence in - with or legal presence in New Caledonia, and they submitted to the jurisdiction.

As far as the connecting factors with New Caledonia are concerned, there is no evidence that the vehicle any longer exists; the state of the roadway as it was at the time of the accident no longer exists; the geographical contours have been established by expert survey evidence, and there is only one witness in New Caledonia who saw anything of the events of the accident.

There are two other witnesses who saw the respondent’s car before the accident as it went over or left the roadway.  There is only one eyewitness to the rolling of the car before it went over the cliff and the only other two eye witnesses to the accident are the respondent and his son, who are in Australia.

In paragraph 19 we refer to what the court below characterised as our failure to warn case, and we have said in our submissions that may be too economic a description, but there is no cross-appeal on the decision of the court below or the primary judge to disregard that matter.

We refer to it only in this context, that your Honours would expect that as the pleadings develop and more evidence becomes available, that could become a relevant area.  In particular, for example, Lubbe’s Case, to which I will come in a little detail.  The point agitated there was the responsibility of a parent company in England for the conduct of its subsidiaries in South Africa and a question of what law should be applied to determine that question.  The evidence here is that Renault had a subsidiary and was distributing through its subsidiary in South Africa at the time of this accident and that that subsidiary was deregistered only after the accident.

GAUDRON J:   In Australia?

MR MARGO:   In Australia.  That is referred to in paragraph 20 and these paragraphs have references to the judgment.  So we accept that Renault had no legal presence here as that concept is analysed for purposes of domicile and the like but we submit that it is, nonetheless, a relevant factor for clearly inappropriate forum considerations that Renault had experience in this jurisdiction as a large multinational.  It has a long history of distributing in Australia and that would not be a wholly unfamiliar jurisdiction, New South Wales, to Renault, as France or New Caledonia would be to Mr Zhang.

Your Honours are aware from comments which you made in debate yesterday the fact that there is no French or European standard relevant to the design defect of which we complain in this case.  The primary judge found, and it is not challenged, that the experts on that issue are likely to come from Europe or North America and all our experts on that issue come from Australia.  Nobody suggests that anybody in New Caledonia would have anything to say about that matter.

Paragraph 25, your Honour Justice Callinan, that is the evidence on the availability of cross-examination in this case, but we lay not great stress. Although the Court refers to availability of cross-examination, we lay no great stress on cross-examination; we do lay particular stress on discovery, the evidence to which is collected in paragraphs 26 through to 29, and I will come to that in the context of the test and the discussion of legitimate juridical advantage.

In paragraph 30 we refer to another matter on which we would lay great emphasis in the appeal and that is the plaintiff’s financial circumstances.  The fact that he has, in New South Wales, contingent fee arrangements, and there is an unchallenged finding that without those arrangements he could not prosecute his action even in New South Wales and the judges found that he needs financial assistance to prosecute, it is a difficult case.  There will be complex engineering issues and questions of damages.  It is not something that an unrepresented litigant could run on his own with any prospect of success and certainly Mr Zhang, whose mother tongue is Chinese and for whom English is a second language and the evidence is, speaks not a word of French, would have a hard ‑ ‑ ‑

GAUDRON J:   Is that in evidence?

MR MARGO:   Certainly, your Honour; I would not be putting it ‑ ‑ ‑

GAUDRON J:   Yes.  It is just that I would not make that assumption.

MR MARGO:   No, it is in evidence or it is an undisputed fact for purposes of determination of appeal.

GAUDRON J:   Yes, thank you.

MR MARGO:   The matter was dealt with at first instance in an attempt to comply with the Court’s injunction in Voth.  All the evidence was let in and no Jones v Dunkel points were to be taken, but anything could be said in submission about it.

GLEESON CJ:   What you say seems to throw into relief the importance that the primary judge placed on the system of law by reference to which this case will be determined, because I gather you to say that this is a case in which, if I can put it bluntly, it suits the plaintiff for a variety of reasons to litigate in New South Wales.  The expert witnesses on either side will come from either Australia or North America and as far as the defendants’ convenience is concerned, it is not apparent that there is any more inconvenience involved for them in litigating in Sydney than there is in litigating in New Caledonia.

MR MARGO:   Precisely so, your Honour.  Indeed, the evidence is stronger, that there is an unchallenged finding of the primary judge that Renault can have a fair trial and obtain proper representation and run its case fully in New South Wales.

KIRBY J:   Except that in New South Wales discovery is available and that might be absolutely critical in this case and that cuts both ways.  It is, as I understand it, not available in New Caledonia and that is a juridical advantage which the defendant loses by reference to the move from the place where the tort happened to the place where simply the plaintiff is suffering some damage.

MR MARGO:   I will come to that in a bit more detail, your Honour.  Our submission on that is that, yes, one might think that would be the general case that the advantage to the plaintiff is a corresponding disadvantage to the defendant and the learning in Spiliada which was incorporated by Justice Deane in Oceanic is to the effect that the Court should not pretend to use those factors in a decisive way.  In this case, however, my learned friend told your Honours yesterday Renault has no interest in not disclosing the full facts on trial and it is our submission that there is no corresponding disadvantage, a multinational corporation having its design challenged, being submitted to discovery in the State.  It is not a case where they are seeking to evade discovery.

Now, I know we did make some point about the fact that at the interlocutory stage they had refused to give us even test results to which their affidavits had referred, but in light of my learned friend’s comment yesterday that is a submission we feel entitled to put to the Court, that there is, in this case, no corresponding disadvantage.  Certainly, there is not one tittle of evidence in any of the affidavits filed on behalf of the appellants referring to any problem that they might have in coming to Sydney, as opposed to New Caledonia, or staying in France, for that matter.

It is put, as your Honour Justice Hayne yesterday put it, on the bare inferences to be drawn form the governing law that a French court – and it is left unsaid whether it is a court applying French law as in New Caledonia or in France – would be better placed to apply French law.  It is our submission that however that was dressed up yesterday it remains an allegation of the bare fact of governing law and is insufficient in the facts of this case to make New South Wales inappropriate.

Paragraphs 31, 32 and 55 of our submissions collect the crucial findings of fact on the balance between plaintiff and defendant.  Your Honours will see the finding in 31(d) is the one to which I have just referred.  I will not read through the others.

GAUDRON J:   Mr Margo, it just occurs to me – and you may like to say something about it – did anybody really go through the two‑step approach that is mentioned in Spiliada?

MR MARGO:   It is our submission there is no two‑step approach in our law.

GAUDRON J:   Well, I am thinking if you look at the Rules, maybe there is.  First of all, the ground of inappropriate forum has to be made out and that there still remains a residual discretion which may take into account balance of convenience in the particular case.

MR MARGO:   Your Honour, that is a conceptual approach which may achieve and will achieve the same result in most cases.

GAUDRON J:   Yes.

MR MARGO:   It will be my submission and I wish to take your Honours ‑ ‑ ‑

GAUDRON J:   But I am just wondering if, either at first instance or in the Court of Appeal, that approach was taken.

MR MARGO:   Your Honour, no, it was not and it was our strong submission to the Court that that is not the way the test is to be applied and that one cannot understand the concept of legitimate juridical advantage if it is applied in that way.

GAUDRON J:   No.  I am talking more generally than legitimate juridical advantage.  I am talking this.  Once you had clearly inappropriate based in notions of oppression and vexation and abuse of process, then it would seem to follow fairly automatically that there is little room for a residual discretion notwithstanding what was said in Oceanic and in Voth.  Some, but not a lot of room.  When you talk about inappropriate, there may be room for a wider discretion which, on the matters you have mentioned, might well favour your client independently of the “inappropriate forum” test.

MR MARGO:   It is our submission, your Honour, that before one gets to a provisional finding of clearly inappropriate forum, one has to consider the advantages and disadvantages on both sides.

GAUDRON J:   I know that.

MR MARGO:   So any question which my learned friend presented as a second‑stage inquiry is necessarily involved in the balancing act to which Justice Deane referred in Oceanic.

GAUDRON J:   Yes, but as a matter of syntax the rule does seem to provide for a residual discretion even if it is found that it is an inappropriate forum.

MR MARGO:    Yes, may I come to that when I go to Oceanic and Voth?

GAUDRON J:   Yes.

MR MARGO:    Then at paragraph 32, we refer to the physical disabilities and disadvantages of this particular respondent.  We submit that that is also a matter to be taken into account.  Then in paragraphs 34 to 36, which conclude the, we submit, agreed facts, or not disputed facts, we refer to the very long delay that has already occurred in this matter.  We do not blame any party but the fact that proceedings were commenced in February 1994 and that we are still to receive a defence in any action is something to be taken into account when a disabled person is seeking compensation and we refer later to international covenant has to say about delay.

If I may go then to Voth and the test.  Well, before I go to Voth, I must address the rule.  Our submissions about the rule are contained in footnote 18 on page 10 of our written submissions and in a nutshell what they come down to is this, that the application in this case was made under rule 11.8 which does not contain the words that might be thought to relax the common law test; was not under Part 10 rule 6A which bears the subheading – I will take your Honours to that in our bundle.  It is at page 13.  Your Honours looked at these yesterday.  I will not spend long on them.

KIRBY J:   This is against you, is it not?  This is against you in the sense that “clearly inappropriate” is a hurdle for the appellant to overcome whereas the “simply inappropriate” is a much softer test.

MR MARGO:    Well, we submit it is not.  We submit that the single instance decisions in New South Wales are well arguable and that, in fact, all that was intended to be referred to here was a forum inconveniens test as interpreted at common law.

GUMMOW J:   Was there any rule talking about inappropriate forum or forum non conveniens in force at the time of Voth, so far as you know?

MR MARGO:    Your Honour, there is a reference to a rule and the application was obviously made under a rule.  We have not been able to locate that rule.  Your Honours asked for it yesterday.  There certainly was – we need access to something like time TimeBase.  I do not know if my learned friends have it.

KIRBY J:   But where this Court uses the word ‑ ‑ ‑

GAUDRON J:   There was a rule which permitted, as I recollect it, the setting aside of service.

GUMMOW J:   That is right.

GAUDRON J:   But there was no specification of the grounds upon which it was to be exercised.

GUMMOW J:   That is as I understand it.  So it was just left on Logan v The National Bank of Scotland and the cases that followed that which introduced the forum non conveniens ideas as part of inherent jurisdiction..

MR MARGO:    Yes.  Well, your Honours, our submission is ‑ ‑ ‑

GUMMOW J:   If I am wrong about that, I need to see the earlier test if someone can find it in due course.

MR MARGO:    No, certainly, and it is something we should provide for your Honours and perhaps with leave we can provide it if we find it after this.

GUMMOW J:   Yes.

MR MARGO:    But certainly, your Honours, our submission is that this was not an application to set aside service.  It was not decided on that basis.  It was decided under Part 11 rule 8(h).

GAUDRON J:   But rule 6 specifies the grounds upon which an order may be made under Part 10 rule 8.

GUMMOW:   Is what Justice Gaudron said to you not what we said in Agar about the interrelationship between 6A and 8?

MR MARGO:   Yes, your Honour.  I am not sure if what you said in Agar prevents me making the submission, but I will try and make it, that on the face of the rule, rule 6A is self‑contained.  Although it does refer to Part 11 rule 8, it does so with prefatory words of this kind:

(1)  The Court may make an order of a kind referred to in Part 11 rule 8 . . . on application by a person –

et cetera, and then subrule (2) of 6A –

Without limiting subrule (1), the Court may make an order under this rule on the ground –

(a)  that the service of the originating process is not authorised by these rules; or

(b)  that the Court is an inappropriate forum –

and when one goes to Part 11 rule 8 itself there is no cross‑reference to 6A.

KIRBY J:   In the report of Voth 15 NSWLR 513 in the Court of Appeal the headnote says that:

In circumstances where the plaintiffs who had invoked the jurisdiction under Pt 10, r 1(1)(e) –

but I cannot find that subrule or paragraph set out in the reasons, so it is a matter of searching that ‑ ‑ ‑

MR MARGO:   No, 1(1)(e) is the long arm jurisdiction for damage being suffered within the jurisdiction, your Honour, that is the ‑ ‑ ‑

KIRBY J:   I see, so that is simply the foundation for jurisdiction.

MR MARGO:   Yes.  I am going from recollection here, but the rule was not actually nominated by number in Voth.  That is as much as we can do on construction.  We rely also on the fact that this ‑ ‑ ‑

GAUDRON J:   Is it your submission that – then let me clearly understand that – Part 11 rule 8 is independent of Part 10 rule 6A?

MR MARGO:   As a matter of black letter construction, that is the submission.

GAUDRON J:   Rule 6A are the grounds to be applied if you are making an order of a kind but not an order as specified in 11.8.

MR MARGO:   You might be able to and in most cases perhaps you could go under either rule, but it is ‑ ‑ ‑

GLEESON CJ:   Is it the case that Part 11 rule 8 was there before Part 10 rule 6A?

MR MARGO:   I cannot answer your Honour on that either.

GLEESON CJ:   Perhaps you could check that.

MR MARGO:   Yes.

GAUDRON J:   I think 11 might have been there when Voth was decided.

MR MARGO:   It may have been the 11 rule, or an equivalent of 11, that Voth was decided under.

GAUDRON J:   But there was no 10.6A?

MR MARGO:   Your Honour, our next submission is this.  If the legislature intended to depart from the common law, clear intendment would be required as just a basic rule of construction.  The fact that this rule was introduced 15 days before the decision in Oceanic suggested it was not seeking to distinguish “clearly inappropriate” from “inappropriate” and that the omission of the word “clearly” – “clearly” had not sprung to the prominence which Oceanic subsequently gave it.  The intention was to distinguish a test of inappropriate forum from a test of more appropriate forum.  The court may have regard to forum inconveniens, as opposed to forum conveniens.  That is an open ‑ ‑ ‑

GLEESON CJ:   I would not be surprised if the intention was simpler and that was just to use the English language.

GUMMOW J:   There are various other provisions in these rules in which Latin was banished.

MR MARGO:   Yes, it is a great pity.

GUMMOW J:   It was, but it always gives rise to debate.

KIRBY J:   I do not agree.

MR MARGO:   I appreciate that, your Honour, but I was raised in a Roman Dutch jurisdiction and I have yet to come across a language such as ‑ ‑ ‑

KIRBY J:   Well in that jurisdiction they speak three languages, or now, 12, I think.  We do not have that confusion; English is a better thing for us to stick to.

MR MARGO:   Density of connotation and conceptual precision, but I accept, of course, and understand your Honours’ concern, that people should understand the law that is applied to them.

GUMMOW J:   Well they do not.  That is why we are having the debate, they do not.

GAUDRON J:   Least of all when they are written in plain English, Mr Margo, in my experience.

MR MARGO:   The more words one has to use, the more can be played with.  Finally, your Honours, I do not know what real comfort we can draw from this, but nobody in New South Wales has yet suggested or no judge has yet found, that there is any difference between inappropriate forum and clearly inappropriate forum; that may be a matter to which your Honours pay some respect.  I appreciate it is a rule, but it is a rule relating to the procedure of the courts of New South Wales.

GAUDRON J:   Well, I suppose there is an argument it is to be interpreted in the light of the common law as developed, given that it is a word of generality.  No precise meaning.

MR MARGO:   Yes, we would adopt that submission.

GAUDRON J:   That it is to be interpreted in the light of the common law asset has developed.

MR MARGO:   It is certainly in Cigna; your Honours have a copy of that case. There were three decisions, first instance decisions, I think they are referred to in the notes in Ritchie to this rule.  Your Honours have copies of each of them.  Your Honour should not search in Cigna for any reference to the rule.  It is included because experienced counsel in that case, Mr Bathurst and Mr Douglas, took every point they possibly could and it never occurred to anybody to argue this one.

KIRBY J:   But it is true that sometimes points are not seen.  Does Agar deal with this point, because against you, it seems to me, is that this Court said “clearly inappropriate”, the rule was changed and the rule took out the word “clearly”.

MR MARGO:   No, your Honour, with respect, that is not the sequence.  The rule was introduced and then this Court said, “clearly inappropriate”.

GLEESON CJ:   “Clearly” first came into the discussion of this subject ‑ ‑ ‑

MR MARGO:    In Oceanic.

GLEESON CJ:    ‑ ‑ ‑after this rule was promulgated.

MR MARGO:    Indeed.  We would have a greater problem if the sequence of events was as your Honours just put it, but I am indebted to my learned friends.  I do not myself know, but we were told yesterday that the rule was introduced 15 days before the decision in Oceanic was published.

GLEESON CJ:   Let me get it right:  the sequence of events was this rule was introduced; then this Court gave its decision in Oceanic; then this Court gave its decision in Voth.

MR MARGO:   Yes, that is my understanding.

GLEESON CJ:   Until this Court gave its decision in Oceanic, had anyone ever used the expression “clearly inappropriate” in this area of discourse.

MR MARGO:   I put it on this basis, your Honour:  I am not aware of it, but I am certain the expression has not come to prominence was the way I put it.  I am sure it had been used somewhere, or may have been used somewhere.

KIRBY J:   Well, was it not introduced by this Court in order to distinguish clearly, if I can use that adjective, the position this Court was adopting, vis‑à‑vis, the English Spiliada test?

MR MARGO:   It would have been sufficient for this Court to say “inappropriate”.  It is our submission the word “clearly” added the other bits about prima facie and the starting point, and the extreme caution with which a stay should be granted.  Your Honour may be right, this is not an area, even in the Rules of tremendous precision.

May I then go to Voth.  We put this in various way in the court below.  We did not dispute that the primary judge had identified a decision which contained the correct test.  We submitted he had either then not applied that test, or misapplied it.  At appeal book page 222, that is where the primary judge states what he understood Voth to require, and it is at the foot of that page, line 50:

In Voth at 571 the High Court held that the overall task of the court is to exercise its discretion “based upon the competing connections of the respective forums with the subject matter of the proceedings.”

It is our submission that that is an inadequate encapsulation of the Australian test, and it is significant if your Honours would look higher on the page before leaving it, that the authorities his Honour Justice Smart referred to included Voth and Henry.  They did not include Oceanic, although, it will be our , one cannot understand what was said in Voth without referring to Oceanic, and they do include Bankinvest v Seabrook, which is a case in which the Court of Appeal decided that for purposes of the cross‑vesting legislation, a Spiliada-type test should be applied, not Oceanic, and what Bankinvest is doing sitting with those authorities is unexplained.

GLEESON CJ:   Bankinvest was a decision of Justice Rogers?

MR MARGO:   It was a decision of the Court of Appeal in which Justice Rogers gave the main judgment.  I think the other justices, I think Justice Kirby ‑ ‑ ‑

GLEESON CJ:   Chief Justice Street, and myself.

MR MARGO:   Yes.  There is a reference to both Oceanic and Spiliada, but for purposes of the statutory test as to when you send a matter to another State within the Federation or Territory, there is a phrase “interest of justice”, but certainly it was nothing like the test in Voth or in Oceanic, and much more like the sort of case of which this judge would have had experience, and I say that because there is at least one reported case where his Honour went into cross‑vesting considerations, and that I think is Blake v Norris, but I do not have the reference now.

I must get to Voth and Oceanic.  I know your Honours have been taken to these cases often but Lord Salmon in MacShannon sounded the warning that if one started liberalising the meaning of words “vexatious” and “oppressive” there was a risk of their being emasculated and losing any residual meaning and one needs constantly, in our submission, to refer back to the origins of the Australian test in Oceanic and as referred to in Voth to be sure of not slipping ineluctably towards a Spiliada test.

At page 550 in Voth the majority Justices referred to the observation of your Honour the Chief Justice then in the Court of Appeal and to the citation in Oceanic Sun by Justice Deane of the passage from Maritime Insurance and they referred to it with approval.  Then at page 551 they referred to the reasons of your Honour Justice McHugh in the Court of Appeal and again to Oceanic and that the appropriate test was that stated by Deane in Oceanic as accepted by your Honour Justice Kirby in the Court of Appeal.

At the bottom of page 552 their Honours come back again to the authority of the Maritime Insurance Case and, of course, of the dicta in Logan v Bank of Scotland to which it referred and at the middle of page 553 their Honours said:

in Australia, the authority of Maritime Insurance has not been undermined by any comparable development –

to that in England which had gradually eroded Logan and your Honours have been through that development in a number of cases.  Their Honours then quoted from the judgment of Justice Gibbs, as he then was, in Cope Allman and if I could just read part of that quotation to remind ourselves:

the question that I am bound to pose to myself is not simply, ‘Which is the more convenient forum?’  The principles to be applied in such a case as this were laid down by the High Court in Maritime . . . At p 198 Sir Samuel Griffith, whose judgment was concurred in by the other members of the court, said –

and he then read a passage from Sir Gorell Barnes in Logan and that passage is:

“The court should, on the one hand, see clearly –

there is the word “clearly” –

that in stopping an action it does not do injustice, and, on the other hand, I think the court ought to interfere whenever there is such vexation and oppression that the defendant who objects to the exercise of the jurisdiction would be subjected to such injustice” –

Those two dual aspects Justice Deane later develops in Oceanic but Voth went back to the dual aspects and it is important for our argument that they are aspects of a single process because that affects onus.  The two distinguishing features between Spiliada and Voth that we rely on are, firstly, this dual aspect and the weighing process that is involved and, secondly, that there is no shift of onus on the Voth test as there is in Spiliada.

Under Spiliada the defendant bears the onus to establish a more appropriate or most appropriate forum and once that is established the onus shifts to the plaintiff if he or she can to show reasons of justice why a stay should not be granted.  But if the test is as Justice Deane said it was and as the majority in Voth affirmed, a single weighing process, it follows that the onus remains throughout, and there are statements to that effect in decisions of this Court, on the party seeking the stay.

GLEESON CJ:   Could you just remind me, did the Court make a finding in Oceanic as to what was the proper law of the contract?  I realise it held that the contract was entered into in New South Wales but did it resolve the question of whether the proper law of the contract was the law of Greece?

MR MARGO:   Yes.  That was the context in which your Honour Justice Gaudron said if it was arguable – there was an argument about whether the law of the forum would be applied to antecedent questions before one got to proper law of contract.

GAUDRON J:   Yes.  There was a question as to which law would determine whether there was a complete contract, it being one of those exemption clauses that are written.

MR MARGO:   Your Honour took the view, as I recall it, formation questions might be determined by the law of the forum and one did not get to proper law of the contract until one had a completed contract.

GAUDRON J:   Yes.

GLEESON CJ:   I would have thought that if it were the case that the proper law in Oceanic was the law of Greece then the present case is an even stronger case against a stay of proceedings than Oceanic.

MR MARGO:   Well, if there could be a stronger case, your Honour, that would ‑ ‑ ‑

GLEESON CJ:   The plaintiff in Oceanic was not, as it happened, a resident of New South Wales, he was a resident of Queensland ‑ ‑ ‑

MR MARGO:   I had not noticed that.

GLEESON CJ:    ‑ ‑ ‑but he had suffered injuries whilst on an overseas trip and he was suing a Greek shipping line.

MR MARGO:   Yes.

GAUDRON J:   The contract had been entered into in New South Wales.

GLEESON CJ:   It was complicated, but, yes.

MR MARGO:   There was disagreement on where the contract was.

GLEESON CJ:   Yes.

MR MARGO:   Then at page 554 their Honours observed it is rather artificial to go all the way back to maritime but maritime was, nonetheless, affirmed.  In isolation was the qualification.  We would say the same in relation to Phillips v Eyre when we come to it.  Then, the common factors in the judgments of Oceanic were collected by the majority in Voth at the bottom of 554.  They add important glosses and qualifying considerations to the little extract which the primary judge in our case quoted from Voth.  Then on the next page was the reference to the disagreement between Justice Brennan and other Justices in Oceanic about how strictly one should interpret the St Pierre vexations and oppressive.

Then your Honour Justice Gaudron followed Justice Deane with some qualifications about the impact of governing law which I will come to in just a moment.

GAUDRON J:   I think I was the only one who dealt with that, really, in Oceanic.

MR MARGO:   But your Honour was approved in Voth to the degree my learned friend drew attention to yesterday.

GAUDRON J:   Yes, but it is the other side of the coin.  If it is arguable that the forum law is to govern some aspect then you would take the view that you could not establish inappropriate forum.  It does not take the point that if you prove that some other law governs then the domestic forum is inappropriate.

GLEESON CJ:   Because if that were the case, the Supreme Courts in the States would be inappropriately exercising jurisdiction every day of the week. 

GAUDRON J:   Yes, it is only one side of the coin. 

MR MARGO:   Your Honour put that qualification in your Honours’ judgment in Oceanic:  that occasionally it would be a decisive factor, absent other factors. 

GAUDRON J:   When I said “where”, the only connection – where you have nothing more than a State providing a procedural framework for somebody else’s law. 

MR MARGO:   Well, the appellants might submit that this was such a case.  But we would still say that because of the quality of the foreign law in this case, and there being no evidence of any important difference, there being no evidence of a specialist foreign tribunal that is used to this kind of case, that it is not a decisive factor.  And it cannot outweigh all the other factors which the primary judge was so exercised about and gave such attention to, and which led him to find that, for all practical considerations, New South Wales was the best place to hold a trial. 

GUMMOW J:   Now, am I right in thinking you are not really upholding the Court of Appeal, are you? 

MR MARGO:   We have a notice of contention, your Honour. 

GUMMOW J:   Not upholding the reasoning of the Court of Appeal.  What you are really putting to us, I suspect – and I am not saying it is the wrong way to do it, at all – but what you are really putting to us is that the primary judge should have exercised his discretion favourably to your side. 

MR MARGO:   We do support the judgment of the court below, and we submit that it has been misinterpreted by the appellants in their submission, oversimplified. 

GUMMOW J:   So you are going to persuade us that Thompson’s Case is right, are you? 

MR MARGO:   No. 

GUMMOW J:   Well, is that not the fulcrum of their reasoning? 

MR MARGO:   No, the headnote in the Court of Appeal, we submit ‑ ‑ ‑

GUMMOW J:   Do not worry about the headnote.  I am worried about paragraph 45 of their reasons. 

MR MARGO:   I think 45 was the one about legitimate juridical advantage, where Justice Stein said that the argument in Thompson seemed to him to be persuasive, but it is clear from the judgment read as a whole that their Honours in the court below were not deciding whether or not Thompson was correct, in this case.  They decided the matter, in our submission, on the weight which had been given to foreign law, if it was. 
Now, it is not clear beyond dispute, but the submissions your Honour put, we believe, are well arguable.  We make this ‑ ‑ ‑

GUMMOW J:   It was paragraph 42 the one I immediately had in mind, lead into 43. 

MR MARGO:   I will deal with this now, as your Honour has raised it now. 

GUMMOW J:   Well, I am just wondering where we are going, that is all. 

MR MARGO:   We submit that what really happened in the court below was this.  The court below was very struck by the fact that the trial judge had gone through all the traditional factors, apart from governing law, and had reached a fairly strong view that Renault could have a fair trial in New South Wales; that the plaintiff would have enormous difficulties if he had to go elsewhere.  And then he turned, more than halfway through his judgment, to consider governing law, and suddenly, from that moment, his eyes were fixed on France or New Caledonia or some kind of conglomerate French territory that spanned from metropolitan France to New Caledonia, and all the previous considerations were washed away. 

The indications that their Honours were taking that approach are collected in footnote 1 on page 2 of our submissions.  They stop at paragraph 28 of the judgment of Justice Stein.  That is at page 340.  It starts at page 339.  Now, this is a reference to the submission that we put to the court below: 

The claimant submits that Smart J did not apply the correct test in Voth but something more akin to Spiliada, see Mason P in James Hardie Industries Pty Ltd v Grigor (1998) 45 NSWLR 20 at 41 for a discussion of the differences. Essentially the discretion exercised by Smart J is said to have miscarried by his Honour concluding that a stay should be granted to the opponents, having found that the practical considerations tended to favour New South Wales. In particular, it is maintained that his Honour fell into error by attaching too much importance to the assumption that French law would be the substantive law to be applied. This finding, so it seems, outweighed the practical considerations –

And then at paragraph 29 ‑ ‑ ‑

GUMMOW J:   What about paragraph 29?

MR MARGO:    This was our secondary submission that, in fact, it was an error and that Thompson v Hill was - the analysis in Thompson v Hill and by Sackville J in Murray’s Coaches was correct, or at least arguably correct.  We put it in what the Court of Appeal described as a “shy way” and that, therefore, the matter should not be determined at the interlocutory stage.  Then Justice Stein does go on - paragraphs 39 and 42 are the next ones I have a note to refer your Honours to.  Let me take your Honours through paragraphs 30 through to 38, is a consideration of Thompson v Hill and it is a convenient place.  I will not, unless your Honours wish, go to any of that but ‑ ‑ ‑

GUMMOW J:   You support it all.

MR MARGO:    We do support it, but it is a secondary matter.  We say that the decision of the court below is over-determined because when one comes to 38, Stein J says, and this is the high point of the appellate’s interpretation of the judgment:

I find Clarke JA’s reasoning in Thompson v Hill to be most persuasive.

And notes that the President of the Court of Appeal agreed with Justice Clarke in that case.  Then in 39:

Mr Margo submits that it is fairly arguable that the substantive law . . . will be New South Wales law.

Then his Honour says - he does not say, “Well, the argument is decided in this court, he says:

Smart J did not need to determine that question on the stay application and should have left it to the trial judge.  It is maintained that his Honour’s assumption to the contrary -

and these are the words we emphasise -

and his giving it such great weight, caused the discretion to miscarry.

We cannot deny that, on one interpretation - and that is what the headnote says, that this Court said Thompson v Hill is correct.  But we do not think it is - if you read the judgment as a whole, we think they stop short of that.  They were saying, “Given all the practical matters, too much weight was attached to this factor”.  At the bottom of page 343 in paragraph 42, Justice Stein says:

The finding was an unnecessary and arguably premature ruling, if not incorrect.

It is left in the air as to whether it was incorrect or not.  Then paragraph 43, his Honour again says:

It is clear from his reasoning that his Honour placed great weight ‑ ‑ ‑

GUMMOW J:   I do not understand all this.  Why is this question of the substantive law to be applied to be determined at some later date?

MR MARGO:    We wish it to be determined now, your Honour.

GUMMOW J:   No, what are their Honours talking about here?  What are they contemplating will happen, that you find out after the trial what the substantive law was?

MR MARGO:    At the trial it will be argued thoroughly and ‑ ‑ ‑

GUMMOW J:   Well, people have to get ready for trial.

MR MARGO:    There is no doubt that there can be inconvenience attended on that course and that is why special leave was granted in this case.

GUMMOW J:   Yes.  I cannot see why Justice Smart should be criticised for this.  He may have got it right or wrong, but I cannot see why he should be criticised for embarking on the question.

MR MARGO:    Your Honour, I do not think we advance any criticism for embarking.  There were arguments on both sides.  Until the full facts were known, one could not be sure what would apply to what.  Although his Honour disregarded ‑ ‑ ‑

GUMMOW J:   Full facts were known at the trial?

MR MARGO:    Well, the pleadings would be developed.  There would be ‑ ‑ ‑

GUMMOW J:   Pleadings are meant to be pleaded, not developed.

MR MARGO:    I cannot put it any stronger, your Honour.  We certainly ‑ ‑ ‑

GUMMOW J:   No wonder these cases go on for years.

MR MARGO:    Your Honour, this is our interest in the Phillips v Eyre side of this case or the special leave questions.  We are not concerned what ‑ ‑ ‑

HAYNE J:   But, what, to have us tell you how this case might be pleaded?

MR MARGO:   No, your Honour.

HAYNE J:   Well, is that not what it comes to?  At the moment the pleading is framed in a particular way.  You would have us embark – or one or other of the parties would have us embark on a long disquisition about what is the law to be applied, and that in relation to an action barely commenced, in which there is one paragraph making a rather equivocal assertion about law to be applied.  It seems to me to be a very unusual task that the parties are inviting, or at least one of the parties is inviting, this Court to engage in.

MR MARGO:   We came here unwillingly, your Honour, but having come here it would be in my client’s interest not to have to come back, but I appreciate your Honours’ position and the press of business on the Court.

May I continue with Voth as quickly as I can.  On page 556 in Voth there is again a reference to what we say is a single‑stage inquiry, that is the comparison between a “clearly inappropriate forum” test and the traditional test.  I will not stay with that page because it is explained in more detail in Oceanic.  Then at page 558 at about point 4:

The “clearly inappropriate forum” test is similar to and, for that reason, is likely to yield the same result as the “more appropriate forum” test in the majority of cases.  The difference between the two tests will be of critical significance only in those cases – probably rare –

and we submit this is one of them –

in which it is held that an available foreign tribunal is the natural or more appropriate forum but in which it cannot be said that the local tribunal is a clearly inappropriate one.  But the question which the former test presents –

and that is the Australian test –

is slightly different in that it focuses on the advantages and disadvantages arising from a continuation of the proceedings in the selected forum –

and then comes the statement we have quoted in our submissions, that:

The important point is that, in those cases in which the ascertainment of the natural forum is a complex and finely balanced question –

which the primary judge certainly regarded it as –

the court may more readily conclude that it is not a clearly inappropriate forum.

The connecting factors are divided between New Caledonia and France and the appellants can only escape that consequence by trying to conflate them and even if they can be conflated as a matter of legal system, on the evidence, and which we dispute, the geographic separation is something material to be taken into account.

GAUDRON J:   You keep saying that.

MR MARGO:   I am sorry, your Honour.

GAUDRON J:   I understand that New Caledonia is what is known as France outre‑mer.

MR MARGO:   That may apply to French Guiana.  French Guiana is an overseas department of France and New Caledonia is a territory, but there is nothing in the evidence about the inference of the Matignon Accords or the Noumea Accord or ‑ ‑ ‑

CALLINAN J:   Mr Margo, just taking up something that Justice Gummow said about the manifest convenience of knowing before the trial what system of law is going to be applied.  The sorts of interlocutory steps that you might wish to take, well, also your decisions about them, the parties’ decisions about them, are also likely to be heavily influenced by the system of law ultimately likely to be applied.  It seems to me to be – I had not thought of it before, but it is obviously massively inconvenient only to find out, perhaps on the second day of argument at the trial, what system of law is going to be applied.

MR MARGO:   Yes.

HAYNE J:   Why is not that inevitable and is it not inevitable according to the way in which the pleadings fall out?  Either there will be an issue tendered at trial about application of foreign law and its content or there will not.  If there is an issue tendered, the parties will not know the answer to it until judgment.  The matter is clouded by this proposition so frequently put forward that there are presumptions about the application of forum law if foreign law is not known.

The better analysis may well be the proof of foreign law is a matter for pleading and proof.  Absent pleading, absent proof, the Court simply applies the law that it knows and applies – local law.  So, it is for the parties and for no one else to raise whatever issue they wish to raise about application and, significantly, content of any asserted foreign law and until they do there is no issue.

MR MARGO:   Certainly in New South Wales, your Honour, the Court of Appeal has held in Walker v Pickles, and they claim to follow Anderson and Koop v Bebb, that whatever the interpretation of Phillips v Eyre, the plaintiff does not have to plead the lex loci delicti or the satisfaction of the two limbs.  That may be a survival of the Machado v Fontes test which ‑ ‑ ‑

HAYNE J:   That is not the point I am making.  The point I am making is that if a plaintiff asserts he or she has a right against the defendant, the content of which is formed from a rule of foreign law, it is for the plaintiff to plead that.  If the defendant asserts, by contrast, that the defendant has an excuse or that the defendant is not obliged in the manner asserted, that is a matter for defence, and until that is done there is no issue.

MR MARGO:   We accept that.

CALLINAN J:   Just taking that up, if there is an issue then on the pleadings when they are complete, it might be very convenient that that issue be decided as a separate issue before the trial to save a great deal of uncertainty, time and expense and, perhaps, preparation under two systems of law for the trial.

MR MARGO:   We do not question in any way the way your Honour Justice Hayne has put it as a matter of pleading ‑ ‑ ‑

HAYNE J:   But it has important consequences for the immediate application, which is the subject of appeal.

MR MARGO:   I appreciate that.

HAYNE J:   A plaintiff has asserted, true it is as an alternative plea, that foreign law applies.  The defendant comes to Court seeking stay saying, “The fact that foreign law applies is significant in connection with my application for stay.”  It stops at that point.  It does not go to the point of saying the content of the foreign law relevantly is A to Z and that presents further difficulties.  But is not, therefore, the issue about the way Phillips v Eyre might work, what its content is, entirely a false issue in the present proceeding?

MR MARGO:   Yes.  What your Honour Justice Hayne is putting to me in a sense may have underlain the view of the court below that the decision was premature, not that his Honour was not entitled to have regard to foreign law if he properly could do so on the pleadings of the facts at the stage it came before him, but that these questions are still up in the air.

GLEESON CJ:   If it be the case, and I have not analysed the judgments for the purpose of looking at this, but if it be the case that Oceanic was decided on the basis that this Court lift it up in the air as to whether the proper law of the contract was Greece or New South Wales, that would tend to support a criticism of Justice Smart’s judgment in so far as it seems to have treated governing law as decisive.

MR MARGO:   Certainly, your Honour.  Could I come then to page 564 of Voth:

It follows that, subject to the question of onus –

at the bottom of the page –

discussed in the preceding paragraph –

and that is the difference in onus whether you are applying for leave to serve out or for a stay –

the principles to be applied in applications to set aside service and in applications for a stay on inappropriate forum grounds are those stated by Deane J in Oceanic Sun.  In the application of those principles the discussion by Lord Goff in Spiliada of relevant “connecting factors” and “a legitimate personal or juridical advantage” provides valuable assistance.

I will not take your Honours to it, but your Honour Justice Callinan asked about this.  At pages 482 to 484 is the discussion in Spiliada of legitimate personal or juridical advantage and the effect of it in summary is that if there is a correlative disadvantage to one party of the other party’s advantage, the factors cannot be decisive but that there can be exceptional cases in which they assume greater importance and those are cases where the loss of the legitimate juridical advantage would prevent the party from obtaining justice in the foreign forum

The two advantages, in order of importance that we rely on, are firstly, financial and the ability to (a) obtain legal representation in the foreign forum - Mr Zhang’s ability to do that - and secondly, to pay for his witnesses.  The learned primary judge imposed a condition that the appellants pay for the court appointed expert - there may be more than one court appointed expert required; one for damages, one for engineering at least, but said nothing, having found that we could not afford to pay our experts even in New South Wales, and that we could not afford to send any witnesses, expert or otherwise, to Noumea, the learned judge said nothing about what Mr Zhang is expected to do if the case is sent to France or New Caledonia about witnesses, let alone about his own travel there.

KIRBY J:   Yes, but one answer to that may be that in such events you should get insurance from having accidents in foreign places.  I mean people do that.  It has to be tested with reference to Colombia, to Argentina, to all sorts of countries.  In a world where everybody travels the notion that you can just, with anything that happens to you in a tort-like event, that you can sue in your own jurisdiction is one which is not difficult to reconcile with a responsible, international legal order.

MR MARGO:   The cases that we referred to of Connolly v Rio Tinto Zinc, and the more recent case of Lubbe v Cape plc in the House of Lords, which reviews Connolly - so your Honours do not really need to go to both at the moment.  My learned friends took you to Connolly yesterday and to the dissenting speech of Lord Hoffmann in Connolly - do not put it on the basis that just because there is legal aid, legal assistance in the local forum and non abroad, that that is a decisive factor.

They combine two factors.  That the case must be of such complexity, and require professional assistance and expertise, that the lack of financial assistance in the foreign forum means the plaintiff cannot get justice.  Now Lord Hoffmann criticises that approach because it leads to a different result for a rich victim to a poor victim, but that is an inescapable fact when one is looking at the interests of justice in a particular case.

GLEESON CJ:   Well, we can sometimes erroneously, if we concentrate our case on personal injuries litigation, equate the word “plaintiff” with “injured, impecunious, individual”, and equate the word “defendant” with “large, multi‑national corporation”.  If you are talking about commercial litigation, as distinct from personal injuries litigation, the roles might be reversed; the plaintiff might be commonly a bank, for example, and the defendant might be an individual.

GLEESON CJ:   How long do you expect to require? 

MR WALKER:   Ten seconds, I think, your Honour.  The position in Canada, the United States, and also Hong Kong – to be gathered from Red Sea – has also been referred to in our written submissions in the same paragraph 22, (vi), (vii), (viii) – as to Ireland, and Red Sea in paragraph 25.  May it please your Honours. 

GLEESON CJ:   Thank you, Mr Walker.  We will reserve our decision in this matter and we will adjourn until 9.30 tomorrow morning in Sydney and Canberra.  You divided the time between yourself and Mr Walker.  Is there something further you want to say? 

MR MARGO:   No, your Honour.  Well, just this:  that in the reference I gave to Pickles, I omitted to draw your Honours’ attention to the fact that there is a dictum of Chief Justice Latham, that is referred to in Pickles, which gives a contrary view of what the pleading rule should be in Phillips v Eyre.  It is referred to in the passage I refer to, but if I did not tell your Honours that, you might not find it. 

GLEESON CJ:   Thank you.  We will adjourn until tomorrow morning. 

AT 4.18 PM THE MATTER WAS ADJOURNED