"Troublesome and Obscure": The Renewal of Renvoi in Australia

Reid Mortensen

Reader in Law, TC Bierne School of Law, University of Queensland

JPrivIntL Vol 2 Issue 1 (April 2006)

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Abstract

In a Western Australian foreign tort case, Neilson v Overseas Projects Corporation of Victoria Ltd, the High Court of Australia found that, although the Western Australian court would normally require Chinese law to govern the case, Chinese choice of law rules would require Western Australian law to apply. Strongly supporting the recognition of one of the most troubling and obscure problems of private international law – renvoi – the High Court adopted the foreign court theory or double renvoi solution to the problem and applied Western Australian law to the case because – as the Court concluded - this is what a Chinese court would do. Neilson is the first application in the Commonwealth of renvoi in a tort case, and could renew impetus for using renvoi in choice of law. If so, this is a regrettable development. It is argued that Neilson uses an unsound evidential method and adopts an incoherent and unnecessary doctrine of renvoi just to get an outcome that is unjustified. The Court’s method leaves the suspicion that it was using renvoi to secure the forum court’s application of its own law. However, using renvoi to have the forum law applied in a tort case is probably motivated by unique deficiencies of Australian choice of tort law, and other Commonwealth countries have no comparable reason to adopt the doctrine. Furthermore, even if the Court’s true goal was to duplicate the result that a Chinese court would reach, it would seem better that this be done by more efficient procedures of forum non conveniens that would have had the Chinese court actually decide the case – instead of using renvoi to second-guess what the Chinese court would do.

Keywords

Australian choice of law, choice of law in tort, foreign torts, Neilson v Overseas Projects Corporation of Victoria Ltd, proof of foreign law, remission, renvoi