Renvoi doctrine and choice of law in tort

Case summary

In the context of foreign tort claims, the lex loci delicti includes the choice of law
rules forming part of that law. An Australian court hearing a foreign tort claim
should decide the case in the same way a court of the locus delicti would decide the
case, which may mean the application of the substantive law of another legal system
e.g. Australian law as the law of the nationality of the parties.
Neilson v. Overseas Projects Corporation of Victoria Ltd
(2005) 221 ALR 213 (High Court of Australia)
Background
The plaintiff, Mrs Barbara Neilson, was an Australian national domiciled in Western
Australia. She suffered personal injury in an accident in the Peoples Republic of
China (PRC) caused by the negligence of the defendant, a Victorian state-owned
corporation with its registered office and principal place of business in Victoria. After
expiry of the one year limitation period under the law of the PRC but within the six
year limitation period under the law of Western Australia, the plaintiff commenced a
common law tort action against the defendant in the Supreme Court of Western
Australia. The jurisdiction of the court was not in contention. The defendants
negligence (as occupier of defective premises in Wuhan, central China, where the
plaintiff suffered her personal injury) and the plaintiffs damage also were not in
contention.
Article 146 of the General Principles of Civil Law of the PRC permitted a PRC court
to apply the law of their own country or of their place of domicile if both parties in
tort proceedings are nationals of the same country or domiciled in the same country.
The case was conducted on the basis that there was no material difference between the
law of Western Australia and the law of Victoria.
Disposition
1. Under the common law choice of law in tort rule (Regie Nationale des Usines
Renault SA v. Zhang (2002) 187 ALR 1) the applicable substantive law in respect of
the plaintiffs claim was the law of the PRC as the lex loci delicti.
2. Reference to the law of the PRC included the choice of law rule in Article 146 of
the General Principles of Civil Law of the PRC. (Gleeson CJ, Gummow, Kirby,
Hayne, Callinan and Heydon JJ; McHugh J dissenting.)
3. On the basis of evidence of the law of the PRC (Gleeson CJ) or on the basis of a
presumption that the law of the PRC was the same as Australian law (Gummow,
Hayne, Callinan and Heydon JJ), a PRC court would have applied Australian law
(excluding the Australian common law choice of law in tort rule) in the circumstances
of the case. Accordingly, Australian law (excluding the Australian common law
choice of law in tort rule) was to be applied by the Supreme Court of Western

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Australia. (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ; McHugh and
Kirby JJ dissenting.)
4. Regardless whether the one year limitation period under the law of the PRC was
substantive or procedural (an issue not necessary to resolve), the plaintiff was entitled
to the damages for personal injury awarded by the primary judge in the Supreme
Court of Western Australia as her claim was within the six year limitation period
under the law of Western Australia.
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A note about proof of foreign law
As a general rule, an Australian court will not take judicial notice of foreign law. If a party (plaintiff or
defendant) wishes to rely on a provision of foreign law in proceedings in an Australian court, that party
must plead and prove the foreign law. However, in the absence of proof of foreign law, an Australian
court will presume that foreign law (e.g. the lex loci delicti in a foreign tort claim) is the same as the
lex fori : see Dyno Wesfarmers Ltd v. Knuckey [2003] NSWCA 375; compare Damberg v. Damberg
(2001) 52 NSWLR 492 which considers the limits of the presumption that foreign law is the same as
the lex fori.
In Neilson (above) the plaintiffs statement of claim made no reference to the law of the PRC and little
evidence was given at the trial about Article 146 of the General Principles of Civil Law of the PRC.
However, an expert witness (a law graduate of Shanghai University admitted to practice in China)
called by the defendant, said in cross examination that if the plaintiff had sued in the PRC she could
have asked the PRC court for an order applying Australian law and, in that event, the PRC court
would determine that question according to its own ideas of fairness and the justice of the case : see
Gummow and Hayne JJ at [117]. Gleeson CJ was of the view that the evidence of Chinese law was
just enough to support the conclusion that a PRC court would have applied Australian law in the
circumstances of the case. Gummow and Hayne JJ in their joint judgment and Callinan and Heydon JJ
in their separate judgments held that, if there was a deficiency in the evidence of Chinese law, the
presumption could be invoked that Chinese law on the construction of Article 146 was the same as
Australian law on the question of statutory construction. This led to the conclusion that a PRC court, in
construing Article 146, would have applied Australian law in deciding the plaintiffs claim. On the
other hand, Gleeson CJ, McHugh and Kirby JJ in their separate judgments were of the view that the
presumption that Chinese law was the same as the lex fori (an incredible fiction according to Kirby J)
had no application in the present case, not least because there was no equivalent of Article 146 in
Australian law. As McHugh J (dissenting) observed at [36]:
It surely cannot be right to hold that there is a presumption that Australian courts
would exercise a discretion in accordance with Australian law in respect of a foreign
rule of law that is contrary to the Australian rule on the subject.
And at [204], Kirby J (dissenting on this issue) observed:
With all respect to the majority view, I regard it as straining even credulity to impose
on an Australian court the fiction of presuming that the law of China (the place of the
wrong), which is an essential element in this case, is the same as the law in Australia.
A note about the renvoi doctrine
The renvoi (or reference back) doctrine arises if a choice of law rule of the forum (e.g. the lex loci
delicti rule in respect of foreign tort claims) is interpreted as referring to the whole of the law of a
foreign country including its choice of law rules. In such a case, the choice of law rules of the foreign
country may refer back (remit) to the lex fori (e.g. as the country of nationality of the parties). The
practical problem for a court of the forum when the renvoi doctrine arises is to identify the applicable
substantive law which may be the substantive law of the foreign country or the substantive law of the

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forum. (In relatively rare cases where the renvoi doctrine arises the choice of law rules of the foreign
country may refer to the law of a third country rather than to the lex fori. This is known as
transmission and the same principles apply as with remission to the lex fori.)
In the academic literature and the decided cases, various solutions to the problem of renvoi have been
suggested. One solution, the internal law solution, is to reject the renvoi doctrine by interpreting the
choice of law rules of the forum as referring only to the internal law of a foreign country, meaning
the law of the foreign country excluding its choice of law rules. This was the solution adopted by
McHugh J in his dissenting judgment in Neilson (above). Thus, in the case of a tort committed in
China, McHugh J interpreted the lex loci delicti rule as referring to law of the PRC excluding the
choice of law rule in Article 146 of the General Principles of Civil Law of the PRC.
A second solution to the problem of renvoi, the single renvoi solution, is to interpret the choice of
law rules of the forum as referring to the whole of the law of a foreign country including its choice of
law rules. However, if the choice of law rules of the foreign country refer back to the lex fori, the
reference back is interpreted as a reference to the internal law of the forum meaning the lex fori
excluding its choice of law rules. This was the solution adopted by Callinan J in Neilson. Thus, in the
case of a tort committed in China, Callinan J interpreted the lex loci delicti rule as referring to the
whole of PRC law including Article 146. However, upon discovering that Article 146 referred back to
Australian law as the law of the parties nationality, the reference back was interpreted as a reference to
Australian law excluding the lex loci delicti rule.
A third solution to the problem of renvoi, the foreign court theory or double renvoi, is to interpret
the choice of law rules of the forum as referring to the whole of the law of a foreign country including
its choice of law rules. However, if the choice of law rules of the foreign country refer back to the
lex fori, the court of the forum decides the case in the same way as a court of the foreign country.
Arguably, this is the solution adopted in Neilson by Gleeson CJ, Gummow, Kirby, Hayne and Heydon
JJ and it required determining how a PRC court would have decided the case if the plaintiff, Mrs
Barbara Neilson, had litigated her personal injuries claim in China rather than in Western Australia.
In Neilson, a choice of law in tort case, the High Court declined to postulate a single theory of renvoi
to govern all proceedings in Australian courts requiring reference to foreign substantive law: Kirby J
at [175]; compare Gummow and Hayne JJ at [99]; Heydon J at [277]. In this regard, it may be noted
that, although the renvoi doctrine applies in the areas of succession, family law and property, there is a
view (which may be wrong) that the renvoi doctrine does not apply in choice of law in contract. See,
e.g., the remarks of Lord Diplock in Amin Rasheed Shipping v. Kuwait Insurance [1984] AC 50:
One final comment on what under English conflict rules is meant by the proper law of
a contract may be appropriate. It is the substantive law of the country which the parties
have chosen as that by which their mutual legally enforceable rights are to be ascertained,
but excluding any renvoi, whether of remission or transmission that the court of that
country might themselves apply if the matter were litigated before them. For example, if a
contract made in England were expressed to be governed by French law, the English court
would apply French substantive law to it notwithstanding that a French court applying its
own conflict rules might accept a renvoi to English law as the lex loci contractus if the matter
were litigated before it.
In Re United Railways of the Havana and Regla Warehouses Ltd [1960] Ch 52, a decision of the
English Court of Appeal, Jenkins LJ (in a joint judgment with Romer LJ) observed (at p 97) that, if the
proper law of the contract being considered by the court in that case was the law of Cuba, such law was
the domestic law of Cuba and not the rules of the conflict of laws administered by the Cuban courts.
Jenkins LJ also observed (at p 97) that the principle of renvoi finds no place in the field of contract.
The other member of the court, Willmer LJ, agreed with this observation (p 115).
On the other hand, an observation of McLure JA in the decision of the Western Australia Court of
Appeal in ODriscoll v. J Ray McDermott SA [2006] WASCA 25 provides some support for the
application of the renvoi doctrine in choice of law in contract. ODriscoll involved a personal injury
action in Western Australia by an employee against his employer for breach of implied terms in the
employment contract. The proper law of the employment contract was the law of Singapore and the
place of the employment related accident in which the employee suffered personal injury was a barge
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in Indonesian territorial waters. In the event, the Western Australia Court of Appeal held that the
employees action in Western Australia was barred by the expiration of the three year limitation period
under the law of Singapore even although the action had been commenced within the six year
limitation period under the law of Western Australia. At [12], McLure JA made the following
observation:
The High Court in Neilson held that for international torts, the lex causae includes the choice
of law rules of the lex causae. Both parties [the employee and the employer] accept for the
purposes of the appeal that this principle extends to contracts.

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RA.PIL.Neilson v. OPC (Summary)