Regie Nationale Des Usines Renault SA v Zhang - [2002] HCA 10

HIGH COURT OF AUSTRALIA
GLEESON CJ,
GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ
REGIE NATIONALE des USINES APPELLANTS
RENAULT SA & ANOR
AND
FUZU ZHANG RESPONDENT
Regie Nationale des Usines Renault SA v Zhang
[2002] HCA 10
14 March 2002
S9/2001
ORDER
Appeal dismissed with costs.
On appeal from the Supreme Court of New South Wales
Representation:
B W Walker SC with A S Bell and R D Glasson for the appellants (instructed by Connery & Partners)
R F Margo SC with S E Pritchard for the respondent (instructed by T D Kelly & Co)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS
Regie Nationale des Usines Renault SA v Zhang
Private international law – Forum non conveniens – Tort – Allegedly negligent design and manufacture overseas of motor vehicle by foreign company registered, but not carrying on business, in Australia – Motor vehicle accident in New Caledonia – Continuing damage suffered in New South Wales – Action commenced in New South Wales Supreme Court – Supreme Court declined to exercise its jurisdiction and stayed the proceedings – Whether exercise of discretion miscarried – Relationship between Supreme Court Rules authorising orders declining jurisdiction and judicial decisions on forum non conveniens – Whether Supreme Court a clearly inappropriate forum – Relevance of circumstance that foreign law is to be applied as the lex causae – Whether discretion to grant stay of proceedings should be re-exercised.
Private international law – Choice of law – Tort – Allegedly negligent design and manufacture overseas of motor vehicle by foreign company registered, but not carrying on business, in Australia – Motor vehicle accident in New Caledonia – Continuing damage suffered in New South Wales – Whether French law would be the lex causae applied in a trial in New South Wales –Whether Australian common law should recognise the lex loci delicti as the substantive law to be applied in actions for torts committed in a foreign law area – Whether the "double actionability" rule applies – Whether a single choice of law rule should be adopted consistently in Australia in respect of both international and intranational torts – Whether "flexible exception" applies to recognition of lex causae – Whether public policy exceptions applicable to lex causae.
Practice and procedure – Pleadings – Requirements as to pleadings of applicant on a stay motion seeking to rely upon a foreign lex causae.
Practice and procedure – Action – Stay – Cause of action arising out of jurisdiction – Motor vehicle accident in New Caledonia – Action brought in New South Wales – Plaintiff alleges defective design and manufacture of the motor vehicle – Defendants not present in New South Wales – Plaintiff relies on "long arm" provision in Supreme Court Rules and damage in jurisdiction to found action – Application by defendants for stay – Applicable law – Principles – Forum non conveniens.
Words and phrases – "inconvenient forum".
Supreme Court Rules 1970 (NSW), Pt 10.
GLEESON CJ, GAUDRON, McHUGH, GUMMOW AND HAYNE JJ.
The facts

The appellants ("the Renault companies") are foreign companies whose principal place of business is in France. Neither Renault company is registered in Australia as a foreign company and they do not maintain any office or employ any persons in this country. The first appellant sells to Volvo Australia Pty Ltd ("Volvo") in France motor vehicles which Volvo then sells to various dealerships throughout Australia.
The respondent ("Mr Zhang") entered Australia in 1986 and undertook postgraduate university studies. In late 1990-1991, Mr Zhang was advised by the Australian immigration authorities that he would be granted permanent residency in this country were he to leave Australia and then make application for such residency from outside Australia. On 1 February 1991, Mr Zhang travelled to New Caledonia with the objective of lodging an application for permanent residency with the Australian Consulate in Noumea. He since has been granted Australian citizenship and has been employed as a systems analyst.
On 5 February 1991, whilst in New Caledonia, Mr Zhang hired a Renault 19 sedan. On the next day, 6 February 1991, Mr Zhang suffered serious injuries when he lost control of the car whilst driving along an unsurfaced roadway; the car somersaulted several times, came to rest on its roof, which was crushed into the passenger compartment. Mr Zhang spent 14 days in hospital in Noumea. He then was transported back to Sydney and he was a patient at the spinal unit of the Royal North Shore Hospital until about June 1991. Mr Zhang remains severely disabled.
The litigation
Mr Zhang sought recourse to the Supreme Court of New South Wales to recover damages from the Renault companies for his injuries. In response, there was an application by the Renault companies to stay Mr Zhang's action on the footing that the Supreme Court is an inappropriate forum for the trial of the action.
Mr Zhang instituted his action on 4 February 1994. He alleged that the motor vehicle in which he was injured was negligently designed and manufactured by one or other of the Renault companies and as a result of that negligence he suffered and continued to suffer injury, loss and damage[1]. Because neither of the Renault companies had a presence in Australia, Mr Zhang invoked the "long arm" jurisdiction of the Supreme Court as detailed in Pt 10 of the Supreme Court Rules 1970 (NSW) ("the Rules").
[1]In the alternative, the action was framed in "quasi-contract". The respondent later consented to a stay of that action and it may be put to one side.
In the joint judgment of this Court in Agar v Hyde, it was said[2]:
"Service of originating process of the Supreme Court of New South Wales on defendants outside Australia is regulated by Pt 10 of the Rules of that Court. It is necessary to pay close attention to the terms of those Rules and to notice the several ways in which the present Rules differ from rules that apply, and have been considered, in other jurisdictions. Learning that has developed in connection with those other rules cannot automatically be applied to the Rules which govern the proceedings which are the subject of the present appeals."
[2](2000) 201 CLR 552 at 569 [39].
Jurisdiction and choice of law
Further, it was emphasised in a passage in John Pfeiffer Pty Ltd v Rogerson[3] to which reference will be made, that questions of jurisdiction are to be distinguished from those of choice of law. The keeping of the distinction is rendered more difficult by the circumstance that each of the terms "jurisdiction" and "choice of law" itself requires further analysis. In Lipohar v The Queen, Gaudron, Gummow and Hayne JJ said of "jurisdiction"[4]:
"It is used in a variety of senses, some relating to geography, some to persons and procedures, others to constitutional and judicial structures and powers."
Their Honours referred to the expression "federal jurisdiction" as identifying "the authority to adjudicate" derived from a particular source, namely the Constitution and federal laws, and went on to say[5]:
"'Jurisdiction' may be used (i) to describe the amenability of a defendant to the court's writ and the geographical reach of that writ, or (ii) rather differently, to identify the subject matter of those actions entertained by a particular court, or, finally (iii) to locate a particular territorial or 'law area' or 'law district'." (footnotes omitted)
[3](2000) 203 CLR 503 at 521 [25].
[4](1999) 200 CLR 485 at 516 [78].
[5](1999) 200 CLR 485 at 517 [79].
The authority to adjudicate which Mr Zhang sought to invoke was that of the Supreme Court manifested, in particular, in the Supreme Court Act 1970 (NSW) and the Rules providing for "long arm" jurisdiction.
Rule 1A of Pt 10 of the Rules provided that, subject to rr 2 and 2A, originating process might be served outside Australia in 24 enumerated cases. In particular, par (e) of r 1A(1) provided for the service of originating process:
"where the proceedings, wholly or partly, are founded on, or are for the recovery of damages in respect of, damage suffered in the State caused by a tortious act or omission wherever occurring".
It was upon this paragraph that the respondent relied and nothing turns upon the availability of a head under r 1A(1) for the service of originating process outside Australia. It is common ground that the respondent has suffered damage in New South Wales and will continue to do so, within the meaning of par (e) of r 1A(1).
In Pfeiffer, Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ observed[6]:
"Questions of jurisdiction (in the sense of authority to decide) are better kept separate from questions of the applicable law. A court has jurisdiction in a civil action either because the plaintiff has served the originating process on the defendant while within its territorial jurisdiction or because applicable 'long arm' provisions have been invoked[7]. The assumption of jurisdiction raises no question as to the law to be applied in deciding the rights and duties of the parties. That last question might, in some cases, affect whether the court should decline to exercise its jurisdiction and stay the proceedings[8]. But the authority of a court to decide a question of forum non conveniens and, also, to decide the substantive rights and duties of the parties comes from the fact of service of the process."
At the heart of the present appeal is the point made in the third and fourth sentences of the above paragraph. The answer to the question as to the law to be applied in deciding the rights and duties of Mr Zhang and the Renault companies affects the decision whether the Supreme Court should decline to exercise its jurisdiction and stay the action brought against the Renault companies.
[6](2000) 203 CLR 503 at 521 [25]. See also (2000) 203 CLR 503 at 548 [115] per Kirby J.
[7]In crime, jurisdiction is founded upon presence to stand trial and the governing law always is that in force in the forum: Lipohar v The Queen (1999) 200 CLR 485 at 526‑528 [104]-[108].
[8]See Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 565‑566 per Mason CJ, Deane, Dawson and Gaudron JJ.
The stay application
Pursuant to the requirement in Pt 10, r 2A, there was appended to the statement of claim filed by Mr Zhang, a notice stating:
"1.The Court may, on application made by you in accordance with the rules of the Court, set aside the service on you of this Statement of Claim where –
(a)Service is not authorised by the rules of the Court; or
(b)This Court is an inappropriate forum for the trial of the proceedings.
2.Alternatively you may submit to the jurisdiction of the Court by filing the prescribed form of unconditional notice of appearance.
3.If you do not make an application under paragraph 1 or file a notice under paragraph 2, the Court may give leave to the Plaintiff to proceed against you."
The Renault companies moved in a manner indicated in par 1 of this notice. They did so by motion filed on 25 March 1996. The application was heard by Smart J. The issue before his Honour concerned not the authorisation of service by the Rules, but the question whether the Supreme Court was, as Smart J put it, "an inappropriate forum in which to try Mr Zhang's action against the Renault companies". Both sides read affidavits and there was brief cross-examination of one deponent.
It is accepted that the law of France applies in New Caledonia and that its courts are part of the French judicial system. However, the evidence respecting the position in New Caledonia which was admitted on the motion heard by Smart J concentrated upon procedural aspects of litigation there and upon comparing and contrasting the conduct of litigation in New Caledonia and in New South Wales. Little is to be gleaned from that evidence of the substantive law respecting product liability claims, for example the existence of strict liability rules and distinctions between claims in contract (with the possibility of different privity rules to those of the common law) and delict[9].
[9]cf Taylor, "The Harmonisation of European Product Liability Rules: French and English Law", (1999) 48 International and Comparative Law Quarterly 419 at 425‑428.
Smart J stayed the cause of action based in negligence upon condition that the Renault companies submit to the jurisdiction of the courts of New Caledonia. Further conditions imposed were that the Renault companies not raise and waive any limitation defence, that they not apply for security for costs and that they meet the costs of any independent court appointed expert. His Honour also, by consent, ordered the stay of a cause of action pleaded in "quasi-contract". It may be that the pleader here had been attempting to cast into terms understood (albeit, perhaps, regarded as outmoded) by common lawyers what was a non‑delictual claim founded in French law but not fitting the criteria of a contract claim at common law. The question was not explored in this Court.
Mr Zhang sought, from the Court of Appeal, leave to appeal against the decision of Smart J. That Court (Beazley, Stein and Giles JJA) held that the exercise of discretion by Smart J had miscarried. Accordingly, their Honours granted leave to appeal, allowed the appeal and re‑exercised the discretion. Their Honours held that Smart J should have refused the stay on the ground that the Renault companies had not discharged the onus of showing that New South Wales was a "clearly inappropriate forum".
In this Court the Renault companies seek the reinstatement of the stay ordered by Smart J. The grant of special leave to the Renault companies was conditional upon them undertaking not to seek to disturb the costs order made by the Court of Appeal and paying Mr Zhang's costs in this Court in any event.
The Supreme Court Rules
Before turning to consider the issues which arise in this Court, it is convenient first to consider further relevant provisions of the Rules by which the discretion to which reference has been made is conferred upon the Supreme Court.
Part 10, r 6A provides:
"(1) The Court may make an order of a kind referred to in Part 11 rule 8 (which relates to setting aside etc originating process) on application by a person on whom an originating process is served outside Australia.
(2)      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 this Court is an inappropriate forum for the trial of the proceedings." (emphasis added)
Part 11 of the Rules is headed "APPEARANCE". Rule 8 of Pt 11, so far as presently relevant, states:
"(1)     The Court may, on application made by a defendant to any originating process on notice of motion filed within the time fixed by subrule (2), by order –
(a)set aside the originating process;
(b)set aside the service of the originating process on the defendant;
(c)declare that the originating process has not been duly served on the defendant;
(d)discharge any order giving leave to serve the originating process outside the State or confirming service of the originating process outside the State;
…
(g)declare that the Court has no jurisdiction over the defendant in respect of the subject matter of the proceedings;
(h)decline in its discretion to exercise its jurisdiction in the proceedings;
(j)grant such other relief as it thinks appropriate.
(2)      Notice of a motion under subrule (1) –
(a)may be filed without entering an appearance;
…
(3)      The making of an application under subrule (1) shall not be treated as a voluntary submission to the jurisdiction of the Court." (emphasis added)
It is necessary to say something of the provenance of these revisions of the Rules. Part 10, r 6A commenced on 1 July 1988. At that time, Pt 11, r 8 was in a different form; in particular, par (h) of r 8(1) did not appear. Part 11, r 8 assumed its present form on 19 February 1989. The New South Wales Court of Appeal determined Voth v Manildra Flour Mills Pty Ltd[10] shortly before that, on 13 February 1989. The matter had been dealt with at first instance by Clarke J before the decision of this Court in Oceanic Sun Line Special Shipping Company
[10](1989) 15 NSWLR 513.
[11](1988) 165 CLR 197.
[12]See Voth v Manildra Flour Mills Pty Ltd (1989) 15 NSWLR 513 at 524‑525.
[13](1989) 15 NSWLR 513 at 531.
Inc v Fay[11] on 30 June 1988[12], that is to say, before the commencement of Pt 10, r 6A on 1 July 1988. In his judgment in the Court of Appeal in Voth, Gleeson CJ set out the text of Pt 10, r 6A and observed that it had not been in force at the time of the application before the Court so that there had been no occasion for argument as to its construction and application[13].
The significance of this chain of events is that both Oceanic Sun and Voth were decided before the making in the Rules of the present express provisions whereby the Supreme Court may decline in its discretion to exercise its jurisdiction on the ground that that Court is "an inappropriate forum for the trial of the proceedings".
The order made in Voth by this Court that the action be stayed on certain conditions[14] was upon the application made to Clarke J that the Supreme Court in its discretion should decline to exercise its jurisdiction on the basis of the doctrine identified as forum non conveniens. This had been applied by this Court in Maritime Insurance Co Ltd v Geelong Harbor Trust Commissioners[15]. What is of immediate significance is that the doctrine derives not from any written law but from judicial decisions in various jurisdictions. Earlier decisions in Scotland, England and the United States were discussed by Gleeson CJ in Voth[16].
[14](1990) 171 CLR 538 at 591.
[15](1908) 6 CLR 194.
[16](1989) 15 NSWLR 513 at 525‑530.
Later, in CSR Ltd v Cigna Insurance Australia Ltd, it was said in the joint judgment of six members of this Court[17]:
"It is clear from the rationale for the exercise of the power to stay proceedings and, also, from the words 'oppressive', 'vexatious' and 'abuse of process' in Voth, in Oceanic Sun and in the earlier cases considered in Oceanic Sun, including St Pierre v South American Stores (Gath & Chaves) Ltd[18], that the power to stay proceedings on grounds of forum non conveniens is an aspect of the inherent or implied power which, in the absence of some statutory provision to the same effect, every court must have to prevent its own processes being used to bring about injustice[19]."
[17](1997) 189 CLR 345 at 391. See also Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 at 393 [25].
[18][1936] 1 KB 382.
[19]See Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at 617, 639‑640; Hamilton v Oades (1989) 166 CLR 486 at 502; Jago v District Court (NSW) (1989) 168 CLR 23 at 25, 74; Williams v Spautz (1992) 174 CLR 509 at 518; Walton v Gardiner (1993) 177 CLR 378 at 392‑393; Ridgeway v The Queen (1995) 184 CLR 19 at 60, 74‑75.
The Rules relate to a judicial discretion to decline to exercise jurisdiction. Such a discretion is to be exercised in accordance with principle. The principles to be applied are encompassed within the doctrine developed by judicial decision. They are not extraneous to it.
The apparent objective of the inclusion in the Rules of provisions specifically authorising orders declining the exercise of jurisdiction on the ground that the Supreme Court is an inappropriate forum was to give explicit recognition to the judge-made doctrine in the procedures established by the Rules. It is by reference to authoritative Australian decisions from time to time expounding that doctrine that there is to be found the meaning of the expression in par (b) of Pt 10, r 6A(2):
"that this Court is an inappropriate forum for the trial of the proceedings."
"Inappropriate forum"?

The expression "inappropriate forum" in par (b) of Pt 10, r 6A(2) is less emphatic than the expression "clearly inappropriate forum", the latter being the term adopted in Voth to determine whether an Australian court should decline to exercise its jurisdiction. The formulation in Voth, as Spigelman CJ pointed out in James Hardie Industries Pty Ltd v Grigor[20], was adopted in preference to the "clearly more appropriate forum" test favoured in the United Kingdom. Thus, it should at once be noted that a court is not an inappropriate forum merely because another is more appropriate.
[20](1998) 45 NSWLR 20 at 28.
Because a court's power to stay proceedings is an aspect of its inherent or implied power to prevent its own processes being used to bring about injustice, the same concepts and considerations necessarily inform the test of "inappropriate forum" in par (b) of Pt 10, r 6A(2) as inform the "clearly inappropriate forum" test adopted in Voth. And because the ultimate consideration is the prevention of injustice, they inform it in the same way. Thus, it is appropriate to note what was said by Dawson, Gaudron, McHugh and Gummow JJ in Henry v Henry[21]. Their Honours said[22]:
"In [Voth][23], this Court confirmed its rejection, in [Oceanic Sun][24], of the forum non conveniens principle as stated by the House of Lords in Spiliada Maritime Corporation v Cansulex Ltd[25]. The Spiliada principle allows that a court may stay proceedings which are pending before it if that court is not the natural forum and there is another available forum which is clearly or distinctly more appropriate[26]. The result is that, in the United Kingdom, a stay will be granted in favour of a clearly more appropriate forum or, which is much the same thing in practice, the natural forum[27], that being the forum 'with which the action [has] the most real and substantial connection'[28]. …
In Voth[29], this Court adopted for Australia the test propounded by Deane J in Oceanic Sun, namely, that a stay should be granted if the local court is a clearly inappropriate forum, which will be the case if continuation of the proceedings in that court would be oppressive, in the sense of 'seriously and unfairly burdensome, prejudicial or damaging', or, vexatious, in the sense of 'productive of serious and unjustified trouble and harassment'[30]. It was also held in Voth that, in determining whether the local court is a clearly inappropriate forum, 'the discussion by Lord Goff in Spiliada[31] of relevant "connecting factors" and "a legitimate personal or juridical advantage" provides valuable assistance'[32]. In this last regard, Lord Goff of Chieveley expressed the view that legitimate personal or juridical advantage is a relevant but not decisive consideration, the fundamental question being 'where the case may be tried "suitably for the interests of all the parties and for the ends of justice"'[33]."
[21](1996) 185 CLR 571.
[22](1996) 185 CLR 571 at 586‑587.
[23](1990) 171 CLR 538.
[24](1988) 165 CLR 197.
[25][1987] AC 460.
[26]Spiliada [1987] AC 460 at 478 per Lord Goff of Chieveley.
[27]Spiliada [1987] AC 460 at 477. See also [Voth] (1990) 171 CLR 538 at 557 where it is observed that in "the Spiliada formulation … the 'natural forum' and 'more appropriate forum' are treated as interchangeable expressions".
[28]Spiliada [1987] AC 460 at 478, quoting The Abidin Daver [1984] AC 398 at 415.
[29](1990) 171 CLR 538 at 564‑565.
[30]Oceanic Sun (1988) 165 CLR 197 at 247.
[31][1987] AC 460 at 477‑478, 482‑484.
[32]Voth (1990) 171 CLR 538 at 564‑565.
[33]Spiliada [1987] AC 460 at 482, quoting Sim v Robinow (1892) 19 R 665 at 668 per Lord Kinnear.
In Voth[34], the majority joint judgment also identified as a material consideration whether it is fairly arguable that the substantive law of the forum is the lex causae.
[34](1990) 171 CLR 538 at 566.
The Court of Appeal decision
The Court of Appeal considered that the decisive matter which had determined the exercise of discretion by the primary judge to grant the stay was an erroneous view that it would be French law which would be the lex causae applied in a trial of the action in New South Wales. Stein JA, who gave the judgment with which the other members of the Court agreed, said:
"Applying Thompson v Hill^[[35]^] and earlier authorities in the Court, Smart J should not have taken into account in the exercise of the discretion that a New South Wales court would apply French law as the substantive law to determine the issue of liability.
It is not my understanding of Voth that it held that the lex loci delicti will be applied by the local court as the substantive law for the determination of liability of a foreign tort. …
It is clear from his reasoning that his Honour placed great weight upon French law being the substantive law to be applied by the New South Wales court. Indeed it seems that it was the decisive matter which determined the exercise of the discretion, his Honour having earlier said that practical considerations tended to favour a hearing in Sydney. A fair reading of his Honour's reasons reveals that he saw the question as very finely balanced. The balance was clearly tipped in favour of the opponents by the finding of the substantive law to be applied. In my opinion, the discretion miscarried.
…
Accordingly, it is appropriate to re‑exercise the discretion."
[35](1995) 38 NSWLR 714.
In this Court, the Renault companies submit that, in these passages, and under the influence of its earlier decision in Thompson v Hill, the Court of Appeal in turn displayed a misunderstanding of the "double actionability" rule associated with what was said by Willes J in Phillips v Eyre[36]. In Thompson[37], Clarke JA had referred for support to the decision of Dawson J in Gardner v Wallace[38]. Dawson J had said[39] that this Court had decided in McKain v R W Miller & Co (SA) Pty Ltd[40]:
"that, provided two conditions were met, an action could be maintained in a State other than that in which the tort occurred and that the law, procedural and substantive, to be applied in resolving the action was the law of the State in which the action was heard, that is to say, the law of the forum."
[36](1870) LR 6 QB 1 at 28‑29.
[37](1995) 38 NSWLR 714 at 741‑742.
[38](1995) 184 CLR 95.
[39](1995) 184 CLR 95 at 98.
[40](1991) 174 CLR 1.
However, Pfeiffer has since decided the contrary, namely[41]:
"The lex loci delicti should be applied by courts in Australia as the law governing all questions of substance to be determined in a proceeding arising from an intranational tort. And laws that bear upon the existence, extent or enforceability of remedies, rights and obligations should be characterised as substantive and not as procedural laws."
The Renault companies submit that what is there said as to intranational torts applies or should apply to the common law of Australia respecting foreign torts. One response by Mr Zhang to that submission is that the rule in Phillips v Eyre be maintained, with the lex fori to supply the substantive and procedural law but with a "flexible exception" to be refined on a case by case basis.
[41](2000) 203 CLR 503 at 544 [102].
Another response by Mr Zhang is that the decision of the Court of Appeal to overturn the ruling by the primary judge is to be supported on other grounds. He submits that, quite apart from the error which the Court of Appeal wrongly detected in the reasoning of the primary judge, his Honour erred in application of the governing principle respecting the forum non conveniens doctrine to be found in the decisions of this Court. Whilst later in his judgment Smart J said that he had had regard to the decisions in Voth and Henry, he had commenced his reasons by identifying the issue as "whether this Court is an inappropriate forum in which to try Mr Zhang's action against the Renault companies"; that placed too low a hurdle in the path of the Renault companies.
Mr Zhang then invites this Court to re‑exercise the discretion of the primary judge and thereby to conclude that the stay sought be refused because the Renault companies have not discharged the onus of establishing that New South Wales is a clearly inappropriate forum. If this Court reached the stage in its reasoning that required the re‑exercise of the discretion of the primary judge, then the respondent urged (and the appellants did not seriously dispute) that this Court itself perform that task. Were that re‑exercise to produce a result favourable to the respondent, Mr Zhang, the result would be that the appeal to this Court would be dismissed. For the reasons that follow, that re‑exercise of discretion should be undertaken and, in the result, the appeal should be dismissed.
The double actionability rule
We turn first to consider the submissions of the Renault companies which challenge the decision of the Court of Appeal. Their primary submission is that, subject to statute, the law to be applied by an Australian court to determine the delictual liability of a defendant is the law of the place of the act or omission giving rise to the plaintiff's cause of action and that the primary judge was correct in so identifying French law. The Renault companies thereby seek to take further the holding in Pfeiffer that the common law of Australia now provides that the lex loci delicti is the governing law with respect to torts committed in Australia but which have an interstate element, to cases where the locus delicti is a foreign law area.
In McKain v R W Miller & Co (SA) Pty Ltd[42], the majority of the Court accepted a reformulation, for cases of Australian torts, of the rule in Phillips v Eyre in terms which had been formulated by Brennan J in Breavington v Godleman[43]. That formulation was as follows[44]:
"A plaintiff may sue in the forum to enforce a liability in respect of a wrong occurring outside the territory of the forum if – 1. the claim arises out of circumstances of such a character that, if they had occurred within the territory of the forum, a cause of action would have arisen entitling the plaintiff to enforce against the defendant a civil liability of the kind which the plaintiff claims to enforce; and 2. by the law of the place in which the wrong occurred, the circumstances of the occurrence gave rise to a civil liability of the kind which the plaintiff claims to enforce.
This restatement is narrower in expression than the traditional formulation of the Phillips v Eyre conditions which speak of 'a character that … would have been actionable' and 'justifiable'. It defines more precisely the issues which are referred for determination to the lex fori and the lex loci respectively." (footnote omitted)
[42](1991) 174 CLR 1.
[43](1988) 169 CLR 41.
[44](1988) 169 CLR 41 at 110‑111.
It may be accepted for present purposes that, after Pfeiffer, that reformulation at present represents the common law of Australia as it applies in respect of foreign torts. It is a question whether that formulation should now be displaced, as the Renault companies would have it, wholly in favour of the lex loci delicti (and without any "flexible exception") so as to bring into line the principles respecting Australian and non‑Australian torts.
The position as established in Pfeiffer may be compared and contrasted with the common law in England immediately before its displacement by the Private International Law (Miscellaneous Provisions) Act 1995 (UK) which leaves the common law as applicable only to defamation claims[45]. In the twelfth edition of Dicey, which appeared in 1993, r 203 had stated[46]:
"(1) As a general rule, an act done in a foreign country is a tort and actionable as such in England, only if it is both
(a)actionable as a tort according to English law, or in other words is an act which, if done in England, would be a tort; and
(b)actionable according to the law of the foreign country where it was done.
(2) But a particular issue between the parties may be governed by the law of the country which, with respect to that issue, has the most significant relationship with the occurrence and the parties." (footnote omitted)
Rule 203(2) reflected an understanding of what had been decided by the House of Lords in Boys v Chaplin[47] respecting a "flexible exception". In 1994, after the publication of the twelfth edition of Dicey, the Privy Council decided the Hong Kong appeal of Red Sea Insurance Co Ltd v Bouygues SA[48]. There, it would appear for the first time since The "Halley"[49] itself, the requirement of actionability according to the lex fori formed part of the ratio decidendi of an English decision[50].
[45]Briggs, "Choice of law in tort and delict", (1995) Lloyd's Maritime and Commercial Law Quarterly 519 at 520.
[46]Collins (ed), Dicey and Morris on The Conflict of Laws, 12th ed (1993), vol 2 at 1487‑1488.
[47][1971] AC 356.
[48][1995] 1 AC 190.
[49](1868) LR 2 PC 193.
[50]Dickinson, "Further thoughts on foreign torts: Boys v Chaplin explained?", (1994) Lloyd's Maritime and Commercial Law Quarterly 463 at 464.
It was said in Pfeiffer that the various possibilities for the choice of law rule in tort were the lex fori, the lex loci delicti and the proper law of the tort, in each case with or without a flexible exception[51]. The conclusion reached in the joint judgment was[52]:
"Whatever may be the advantages of a flexible rule or of a flexible exception to a universal rule in the case of international torts, the practical disadvantages are such that neither approach should be adopted with respect to Australian torts which involve an interstate element."
[51](2000) 203 CLR 503 at 535 [72].
[52](2000) 203 CLR 503 at 538 [80]. See also (2000) 203 CLR 503 at 562‑563 [157] per Kirby J.
It should be noted immediately that, in the present case, there is no doubt that the claim by Mr Zhang arises out of circumstances of a character that, if they had occurred in New South Wales, a cause of action would have arisen entitling Mr Zhang to enforce against the Renault companies a civil liability of a kind which he claims to enforce in the action he has instituted against them. That is to say, the terms in which the first limb was expressed by Brennan J in Breavington are satisfied.
However, if this Court is to re‑exercise the discretion upon the stay application, it should do so upon an understanding as to the law to be applied in deciding the rights and duties of the parties. That entails some consideration of what is involved in the "double actionability" rule.
In Anderson v Eric Anderson Radio & TV Pty Ltd[53], Windeyer J, in a passage later referred to with approval in Pfeiffer[54], pointed out that to conclude from the first limb of the double actionability rule that the courts of the forum would entertain an action on a foreign tort did not necessarily mean that those courts must determine the action in accordance with the municipal law of the forum; there was a logical distinction between assumption of jurisdiction and choice of law. In Tolofson v Jensen[55], La Forest J later spoke to the same effect.
[53](1965) 114 CLR 20 at 41.
[54](2000) 203 CLR 503 at 522 [28], 548 [115].
[55][1994] 3 SCR 1022 at 1041.
The action in Eric Anderson was brought in New South Wales in respect of a negligent collision occurring in the Australian Capital Territory. Under the common law in New South Wales, the contributory negligence of the plaintiff was a complete defence, whilst under statute law in force in the Territory it merely constituted a ground for reduction in damages. Windeyer J reasoned that, because the common law in New South Wales did not prevent the cause of action arising, the act of the defendant was "actionable" in that State. It followed that the first limb, as a condition of justiciability, was satisfied. So was the second limb, because there was civil liability under the law of the Territory. The result was that the action was justiciable.
That left for determination the choice of law and this Court held that this was the lex fori. The result is that, even if the first limb be taken as a rule of justiciability, whilst the lex fori supplies the choice of law, more than "actionability" is required for the plaintiff to succeed. There has been, accordingly, some difficulty in disentangling the two limbs and in discerning their single or consecutive operation in the process of adjudication.
In Pfeiffer, after referring to the expression "double actionability", Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ added[56]:
"But what law is applied if effect is given to the double actionability rule? Is the double actionability rule one which deals only with the existence of a cause of action in the forum? Or is one or other of the two limbs in Phillips v Eyre a choice of law rule?"
The various elements and alternatives in that passage require attention. We turn to the question posed in the second sentence.
[56](2000) 203 CLR 503 at 520 [23].
The first limb
In Eric Anderson, Windeyer J referred to academic writing which[57]:
"suggested that actionability by English law relates only to the 'threshold' question, as it has been called, and that what Willes J said does not mean that English law is the substantive law to be applied."
[57](1965) 114 CLR 20 at 41.
Of the decision in The "Halley", Professor Kahn-Freund has written of the influence of Savigny's writings upon that decision[58]:
"His views were quoted to the court and no doubt met with a sympathetic response because the court disliked the idea that the ship-owner should be liable for a pilot whom he had not chosen and over whom he had no control. It was not only against a then existing (now repealed) English statute[59] but also in the view of the court against English ordre public international.[60]"
[58]"Delictual Liability and the Conflict of Laws", (1968‑II) Recueil des Cours 1 at 13‑14.
[59]Merchant Shipping Act 1854 (UK), s 388.
[60][Hancock, "Three Approaches to the Choice of Law Problem", (1961) 20th-Century Comparative and Conflicts Law at 86ff; Kahn-Freund, "Reflections on Public Policy in the English Conflict of Laws", (1953) 39 Transactions of the Grotius Society 39.]
Writing shortly after the decision in The "Halley", Westlake said of the support by Savigny for the lex fori[61]:
"His reason is that all laws relating to delicts have such a close connection with public order as to be entitled to the benefit of what I have called the reservation in favour of a stringent domestic policy".
[61]Westlake, A Treatise on Private International Law, 2nd ed (1880) at 222.
What was it that encouraged Savigny and other nineteenth century German scholars to forge between delictual liability and the lex fori a link so obviously stronger than that which connects the lex fori with contracts and property rights? One answer, given by Professor Kahn-Freund, is the perception of the law of civil delict as intimately connected with the criminal law[62]. That perception has been shared by common lawyers and is exemplified in the endlessly debated decision of the English Court of Appeal in Machado v Fontes[63]. What is of present significance is that that decision regarded an act as "unjustifiable" as a tort if criminal liability attached to it, thereby seeing "the law of civil delict in terms of moral condemnation and not in terms of compensation"[64]. Machado v Fontes apart, at the present day the connection between tort law and the retributive aspect of the criminal law is drawn principally in those decisions, such as Gray v Motor Accident Commission[65], concerning exemplary damages. Further, the criminal law often has been said to be "local"; what that proposition presently involves in Australia was considered in Lipohar v The Queen[66].
[62]"Delictual Liability and the Conflict of Laws", (1968‑II) Recueil des Cours 1 at 20‑23.
[63][1897] 2 QB 231 at 233‑234, 235‑236.
[64]"Delictual Liability and the Conflict of Laws", (1968‑II) Recueil des Cours 1 at 23.
[65](1998) 196 CLR 1.
[66](1999) 200 CLR 485.

Professor Kahn-Freund has written[67]:
"The development of technology has transformed the nature of delictual liability. It has made short shrift of the theoretical foundation of the lex fori theory in so far as that theoretical foundation consisted of a policy to keep the law of civil delict in line with the criminal law. Most of the contemporary law of delict is an attempt to arrive at an expedient distribution of the risk of insurance against the inevitable dangers inherent in our social life. We think in terms of products liability of manufacturers, of the liability of those in charge of and in control of motor vehicles, of employers' liability for accidents to their workmen." (footnote omitted)
[67]"Delictual Liability and the Conflict of Laws", (1968‑II) Recueil des Cours 1 at 24.
The learned writer continues by observing that, connection with the criminal law apart, the application of the lex fori to delictual liability may be seen as an expression of public policy considerations. Any treatment of Savigny as the "spiritual father" of the decision in The "Halley"[68] overstates the position. In particular, it gives insufficient significance to the influence of Story. As will appear, for his part, Story was well aware of what now would be described as public policy considerations in this field.
[68]Kahn-Freund, "Delictual Liability and the Conflict of Laws", (1968‑II) Recueil des Cours 1 at 13.
Against that background, one asks what is the purpose and function of the first limb as a "threshold" requirement? The decision in The "Halley" was given before the development of a body of case law precluding, on public policy grounds, what otherwise would be a choice of foreign law as the lex causae. The case law deals, of course, not only with tort.
In par 31 of his Commentaries on the Conflict of Laws[69], Story had referred to:
"the right and duty of every nation to protect its own subjects against injuries, resulting from the unjust and prejudicial influence of foreign laws; and to refuse its aid to carry into effect any foreign laws, which are repugnant to its own interests and polity."
It is in that setting that there is to be understood the reference by Selwyn LJ in The "Halley" to what Story had added in par 32 of his work. Selwyn LJ said[70]:
"As Mr Justice Story has observed in his Conflict of Laws, [par] 32, 'it is difficult to conceive upon what ground a claim can be rested to give to any Municipal laws an extra-territorial effect, when those laws are prejudicial to the rights of other Nations or to those of their subjects.' And even in the case of a Foreign judgment, which is usually conclusive inter partes, it is observed in the same work, at § 618A, that the Courts of England may disregard such judgment inter partes if it appears on the record to be manifestly contrary to public justice, or to be based on domestic legislation not recognised in England or other Foreign countries, or is founded upon a misapprehension of what is the law of England: Simpson v Fogo[71]."
[69]5th ed (1857).
[70](1868) LR 2 PC 193 at 203.
[71](1863) 1 H & M 195 [71 ER 85].
The doctrine evoked in the second sentence is now encapsulated in r 44 in Dicey[72]. This states[73]:
"A foreign judgment is impeachable on the ground that its enforcement or, as the case may be, recognition, would be contrary to public policy."
[72]Collins (ed), Dicey and Morris on The Conflict of Laws, 13th ed (2000), vol 1 at 525.
[73]Note that if the foreign judgment is impeachable on the ground of denial of procedural fairness, its enforcement would be contrary to public policy: Adams v Cape Industries Plc [1990] Ch 433 at 496; affd [1990] Ch 503 at 571‑572.
Once this reasoning is appreciated, the curiosity to modern eyes of The "Halley" lies in the apparent characterisation of the Belgian law respecting pilotage as "manifestly contrary to public justice" represented by what was then the English Admiralty law on the subject. In that regard, it should be noted that in the Admiralty Court Sir Robert Phillimore had advanced the opposite view to that of the Privy Council, saying[74]:
"[T]he lex fori is founded upon special considerations of public policy applicable only to British territory, and … the admission of the foreign law, the lex loci delicti commissi, to govern this case is not prevented by reason of its repugnance to natural justice or to public policy".
[74]The "Halley" (1867) LR 2 A & E 3 at 16.
To impose a threshold requirement that, to be justiciable, the plaintiff's claim must arise out of circumstances of such a character that had they occurred within the territory of the forum the plaintiff would have had a cause of action to enforce a civil liability of the kind the plaintiff asserts under the lex loci delicti is to favour, in Westlake's terms, "a stringent domestic policy". Whatever may have been said in favour of such a requirement in England a century and a half ago, it cannot be supported today as anything more than an arbitrary rule. The "experience" of the law, identified by Holmes[75], has developed. Public policy reservations of their nature cannot be contained in closed categories; rather, the modern tendency is to frame them with closer attention to the respective governmental interests involved[76].
[75]The Common Law, (1881), Lecture 1.
[76]Attorney-General (United Kingdom) v Heinemann Publishers Australia Pty Ltd (1988) 165 CLR 30 at 40‑45.
A reading of the first limb as imposing today in Australia a distinct "threshold" requirement, let alone as supplying the lex causae, takes it beyond its public policy root. The often remarked absence of authorities which in terms have relied upon the first limb of The "Halley" to defeat an action is more readily understandable when it is appreciated that various claims may have been rejected overtly on public policy grounds as developed in the cases since the middle of the nineteenth century without any recourse to a wider threshold requirement exemplified by the first limb.
The following remarks by Mr P B Carter are in point[77]:
"[T]he rule in The Halley is peculiar to English law and to some, but by no means all, legal systems derived from English law; it was rejected in the United States many decades ago^[[78]^]. Moreover, it is peculiar to the English private international law of torts. For example, a plaintiff can sue in England on a foreign contract, valid by its proper law, notwithstanding its invalidity by English domestic law. … Why should the lex fori have a special and severely restrictive role to play in the law of torts? Of course, as elsewhere in the conflict of laws, a plaintiff will fail if to allow him to succeed would involve applying a foreign rule the content of which is contrary to the public policy of the forum. Also, to succeed a plaintiff in a tort action may (as elsewhere) have to surmount a characterization hurdle. The issues involved must be classified as tort issues, before the advantage of any tort choice of law rule will be available to him. It might well be that an English judge would refuse to entertain, say, an action for 'insult to honour', either on the grounds of public policy or because such a cause of action is so remote from English notions of tort liability that it would not be classified even for conflict of laws purposes as tort. But to give the law of the forum greater scope would seem to be unjustifiable. In the field of torts there are no compelling policy considerations such as those operating in the criminal law field which require an exceptional role to be accorded to the substantive domestic law of the forum. As Cardozo J observed in the famous New York Court of Appeals tort case of Loucks v Standard Oil,[79] 'We are not so provincial as to say that every solution of a problem is wrong because we deal with it otherwise at home.'"
[77]"Torts in English Private International Law", (1981) 52 The British Year Book of International Law 9 at 12‑13.
[78]Beale, The Conflict of Laws, (1935), vol 2, §378.5.
[79]120 NE 198 at 201 (1918).
In Attorney-General (United Kingdom) v Heinemann Publishers Australia Pty Ltd ("Spycatcher")[80], Brennan J referred, with approval, to the statement by Professor Kahn-Freund[81]:
"Every legal system which permits or commands its courts to apply foreign law must make reservations, reservations attaching not so much to the recognition or application of foreign institutions or rules in abstracto as to the effect which their application, recognition or enforcement would have in the case before the court."
[80](1988) 165 CLR 30 at 50.
[81]Selected Writings, (1978) at 234.
Those reservations may be embodied in a statutory requirement that an Australian court disregard what otherwise would be the choice of law directed by common law principles. The law of the Commonwealth, the Insurance Contracts Act 1984 (Cth), which was applied in Akai Pty Ltd v People's Insurance Co Ltd[82] is an example of such legislation. The relevant public policy also may be found in the common law itself. In that regard, in Spycatcher, Brennan J distinguished between two bases on which the court of the forum might refuse to enforce an obligation recognised by foreign law[83]:
"The first basis is that it would be contrary to the public policy of the forum State to enforce the obligation; the second is that the court denies the capacity in international law of the relevant provision of the foreign law to give rise to the obligation sought to be enforced. The distinction is between a refusal to enforce what is recognized as an existing obligation and a denial of the existence of the obligation sought to be enforced."
An example of laws in the second class was to be found in cases which refuse recognition of the efficacy of foreign laws expropriating property situated outside the territory of the foreign country. Where the forum court acts on the first basis to refuse to enforce an obligation, it accepts the capacity of the foreign law to give rise to that obligation but declines to enforce it; in Spycatcher itself, the decision of this Court was that to apply the principles of law and equity which gave rise to the obligation of confidence owed to the Crown in right of the United Kingdom would be inconsistent with the exigencies of public policy in Australia.
[82](1996) 188 CLR 418 at 433.
[83](1988) 165 CLR 30 at 49. See Collins, "Provisional and Protective Measures in International Litigation", (1992-III) 234 Recueil des Cours 9 at 160‑165.
In the joint judgment in Pfeiffer, it was said that the factors discussed by Cardozo J in Loucks[84], namely the violation of the fundamental principles of justice, prevalent conceptions of good morals and deep-rooted traditions of the common weal, were indicative of "[t]he chief consideration which invites reference to the law of the forum, by application of a double actionability rule"[85]. Their Honours in Pfeiffer went on to conclude that, within the Australian federal system, each State and Territory should recognise the interests of the other States and Territories in the application of their laws to events occurring in their jurisdiction; any requirement for double actionability in non‑federal jurisdiction was to be discarded, subject to the selected forum being not clearly inappropriate[86]. The application of a general threshold requirement that the events be actionable according to the laws of the forum could not be justified as based on giving effect to some public policy of the forum of the kind described by Cardozo J[87].
[84]120 NE 198 at 202 (1918).
[85](2000) 203 CLR 503 at 541 [91].
[86](2000) 203 CLR 503 at 542 [96].
[87]John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 at 541 [91].
In the past, the first limb of the "double actionability" rule has been characterised as a technique of forum control specifically applicable in tort cases[88]. In the choice of law rules applicable in Australia, in intra-Australian torts, it has now been put aside. Pfeiffer established that, in the case of intra-Australian torts, principles of public policy have no role to play in the choice of law to be applied to the lex causae, just as those principles have no role to play in the rules respecting recognition and enforcement in Australia of the judgments of Australian courts.
[88]cf Carter, "Choice of Law in Tort and Delict", (1991) 107 Law Quarterly Review 405 at 408.
The "double actionability" rule should now be held to have no application in Australia in international torts. To the extent that the first limb of that rule was intended to operate as a technique of forum control, we should frankly recognise that the question is about public policy and confront directly the issues that this may present. It cannot be suggested, however, that such considerations were engaged in the present litigation. It is, therefore, not the occasion further to consider the content or application of the factors to which Cardozo J referred in Loucks[89] or to consider how those principles relate to the common law rules about recognition and enforcement of foreign judgments. It is sufficient to say that, should a question arise as to whether public policy considerations direct that an action not be maintained in Australia, that question is appropriately resolved as a preliminary issue on an application for a permanent stay of proceedings.
[89]120 NE 198 at 202 (1918).
Choice of law
The question then is whether, consistently with Pfeiffer, and by way of extension to it, it is the lex loci delicti which should be applied by courts in Australia as the law governing questions of substance to be determined in a proceeding arising from a foreign tort. If so, there is a subsidiary question as to whether, as the respondent would have it, there should be appended to that choice some "flexible exception" doctrine resembling that found in Boys v Chaplin[90].
[90][1971] AC 356.
The Renault companies refer to the decision of the Supreme Court of Canada in Tolofson v Jensen[91] and to its acceptance of the lex loci delicti as the governing law both for intra-Canadian and foreign torts. They submit that this Court should take the same course.
[91][1994] 3 SCR 1022.
It has been said of the selection in Tolofson of the lex loci delicti that it avoids "the parochialism and systematic unfairness to defendants" which has become associated with the "interest analysis" involved in the development in the United States of the "proper law of the tort"[92]. It also should be observed that the "flexible exception" associated in English law with Boys v Chaplin[93] reflects influence of the American "governmental interest" analysis[94]. In Pfeiffer, reference was made in the joint judgment to the revival, at least in the United States literature on the subject, of support for the lex loci delicti[95].
[92]Walsh, "Territoriality and Choice of Law in the Supreme Court of Canada: Applications in Products Liability Claims", (1997) 76 Canadian Bar Review 91 at 110; cf Juenger, "What's Wrong with Forum Shopping?", (1994) 16 Sydney Law Review 5.
[93][1971] AC 356 at 391.
[94]Kincaid, "Jensen v Tolofson and the Revolution in Tort Choice of Law", (1995) 74 Canadian Bar Review 537 at 547‑548.
[95](2000) 203 CLR 503 at 537‑538 [77]. Further references to United States writing are collected in Walsh, "Territoriality and Choice of Law in the Supreme Court of Canada: Applications in Products Liability Claims", (1997) 76 Canadian Bar Review 91 at 109.
A passage in the judgment of La Forest J in Tolofson[96] is of particular utility for present purposes. His Lordship observed[97]:
"The underlying postulate of public international law is that generally each state has jurisdiction to make and apply law within its territorial limit. Absent a breach of some overriding norm, other states as a matter of 'comity' will ordinarily respect such actions and are hesitant to interfere with what another state chooses to do within those limits. Moreover, to accommodate the movement of people, wealth and skills across state lines, a byproduct of modern civilization, they will in great measure recognize the determination of legal issues in other states. And to promote the same values, they will open their national forums for the resolution of specific legal disputes arising in other jurisdictions consistent with the interests and internal values of the forum state. These are the realities that must be reflected and accommodated in private international law."
[96][1994] 3 SCR 1022.
[97][1994] 3 SCR 1022 at 1047.
There is force in the statement by one North American scholar[98]:
"There is a growing consensus that the abandonment of territorial constraints on choice of law, whether constitutionally or common law ordained, rather than heralding a brave new world of communitarian values, has resulted only in a parochial and unjust emphasis on local law and the interests of local litigants. A territorial choice of law is no longer seen as inherently incompatible with the achievement of substantive justice in conflicts cases. On the contrary, because it is a forum neutral connecting factor, it contains the promise of more even-handed justice for both parties. Globalization has also influenced the change in thinking. In an age of high personal and professional mobility, the significance attached to the concept of the personal law is in decline; activity-related connections are increasingly thought to offer a more stable and predictable criterion for choice of law."
[98]Walsh, "Territoriality and Choice of Law in the Supreme Court of Canada: Applications in Products Liability Claims", (1997) 76 Canadian Bar Review 91 at 109‑110 (footnotes omitted).
The selection of the lex loci delicti as the source of substantive law meets one of the objectives of any choice of law rule, the promotion of certainty in the law. Uncertainty as to the choice of the lex causae engenders doubt as to liability and impedes settlement. It is true that to undertake proof of foreign law is a different and more onerous task than, in the case of an intra-Australian tort, to establish the content of federal, State and Territory law. But proof of foreign law is concomitant of reliance upon any choice of law rule which selects a non-Australian lex causae.
When an Australian court selects a non‑Australian lex causae it does so in the application of Australian, not foreign, law. While the content of the rights and duties of the litigants is determined according to that lex causae, it is necessary to recall that the selection of the lex causae is determined by Australian choice of law rules.
Once the distinction between jurisdiction as a "threshold requirement" and choice of law is appreciated, it will be seen that there is no obligation upon either party to plead foreign law in order to render a claim or cross-claim justiciable. If, however, either party seeks to rely on foreign law, rules of court and general principles of pleading may oblige the party to plead the relevant foreign law. As is said in Bullen & Leake & Jacob's Precedents of Pleadings[99]:
"Where a party relies on foreign law to support his claim or as a ground of defence thereto, he must specially plead the foreign law relied on in his statement of claim or defence, as the case may be, and he should give full particulars of the precise statute, code, rule, regulation, ordinance or case law relied on, with the material sections, clauses or provisions thereof. A mere allegation that an instrument depending on foreign law is null and void is too vague."
In the present case, on one reading of the statement of claim, the plaintiff alleged that the lex causae was that applicable in New Caledonia but did so in terms which did not comply with the above principles.
[99]13th ed (1990) at 1170.

The respondent has filed a notice of contention. Only one of the matters it raises needs any separate consideration. In par 7 of it, the respondent submits that the primary judge erred in concluding that the conditions included in his orders would be effective to remove unfairness to the plaintiff as a result of the advantages he would lose, and the disadvantages he would suffer if he were required to litigate in France or New Caledonia. The contention overlooks the primary judge's specific and careful consideration of this matter.
Orders
I would allow the appeal and order that the judgment of Smart J be restored. The appellants' grant of special leave was conditional upon, first, their agreement that the order for costs in the New South Wales Court of Appeal not be disturbed and, secondly, their paying the respondent's costs in this Court which I would order accordingly.

"Proceedings for a decree of dissolution of marriage may be instituted under this Act if, at the date on which the application for the decree is filed in a court, either party to the marriage:
(a) is an Australian citizen;
(b) is domiciled in Australia; or
(c)is ordinarily resident in Australia and has been so resident for 1 year immediately preceding that date."