“Troublesome and Obscure”: The Renewal of Renvoi in Australia

Abstract

[Introduction]: It was famously observed that '[j]uristic speculation' on the problem of renvoi 'has been almost infinite', and there are good reasons for it. Renvoi is the apogee of the most distinctive concepts of private international law — the point at which conflicts rules themselves conflict and, so, call for their own conflicts rules. Fortunately, though, it would appear from the reports that adjudication that deals with the problem is much rarer. The attention that the problem of renvoi has received from scholars has been mercifully disproportionate to its actual incidence, and judges often either do not see it when it occurs, or see renvoi and ignore it. As a result, renvoz's appearance in a Western Australian case concerning a tort in the People's Republic of China, and the case's climb to the High Court of Australia, are events of considerable legal significance. The decisions in Neilson v Overseas Projects Corporation of Victoria Ltd of McKechnie J at first instance in the Supreme Court, and of the Full Court of the Supreme Court, have already excited some attention in the scholarly literature. In the first volume of this journal, Andrew Lu and Lee Carroll endorsed the decision of the Full Court to reject the doctrine of renvoi in any of its forms. Analysing any application of renvoi largely within the context of the Australian choice of law rules for tort, they concluded that the recognition of renvoi in choice of tort law would be 'undesirable'. In John Pfeiffer Pty Lid v Rogerson in 2000 and Regie Nationale des Usines Renault SA v Zhank in 2002, the High Court of Australia settled that the law of the place of the tort (the lex loci delictz) governed all interstate and foreign tort claims in any Australian jurisdiction, and allowed no exceptions to that rule — barring one based on public policy in foreign tort claims.' Lu and Carroll argued that any allowance of renvoi would introduce an exception to the unbending lex loci delicti rule 'by stealth',' and would therefore be 'internally flawed'.' About the appeal in Neilson that was pending before the High Court at the time they wrote, Lu and Carroll thought that '[t]here is no suggestion that the Court will so soon resile from the position it declared [in Renault in 2002]'. The High Court decided Neilson in September 2005, and surprised many by emphatically endorsing, by a six—one majority, the availability of the doctrine of renvoi in cross-border tort cases. Five of those judges embraced the doctrine of double renvoi. As will become apparent in this comment, there is more in the High Court's decision in Neilson (than was the case in the Western Australian courts) to suggest that the Court's doctrine and method of proving foreign law are 'internally flawed'. The rationale for endorsing renvoi in Neilson was, in short, the object of securing uniformity of outcome with — what was claimed to be — the outcome that a Chinese court would reach in the case. But whether inter¬national uniformity was genuinely realised in Neilson is anyone's guess. What is certain, however, is that in adopting the claimed Chinese approach to the circumstances of Neilson (which was presumed to be that the law of Western Australia applied) the High Court allowed the first reported instance of the application of the lex fori in a cross-border tort case since the Pfeiffer—Renault duo were decided. This effectively negated, for the Neilson proceedings themselves, the retroactive consequences of Pfeiffer and Renault, which otherwise would have imposed a short Chinese limitation period on a claim that, at the time it was brought, would have been tightly thought to have been subject to the long six-year limitation period of the lex fori. However, as a result Neilson might well have also given Australian choice of tort law an exception 'by stealth'. If so, the High Court could also be compensating for deficient doctrine that the Court itself has insisted that Australian choice of law must have. The Pfeiffer—Renault rule is unique in the Commonwealth in allowing no real exceptions to the lex loci delicti in cross-border tort claims, even if 'the centre of gravity' for the claim were to sit heavily over the forum state. In other countries the lex fori might be applied in a tort claim by invoking a clear, but constrained, 'flexible exception' to the general choice of law rule. In Australia, nevertheless, renvoi is now the only means by which a court can do this. It makes Australian choice of law method more obscure, but also suggests that other countries' courts have no reason to treat Neilson as persuasive — nor to be lured down the troublesome renvoi path.