Pleading and proving foreign law in Australia.

• Jurisdiction: Australia
• Author: McComish, James
• Date: 01 August 2007

[Foreign law lies at the heart of private international law. After all, a true conflict of law cannot be resolved unless and until the content of foreign law is established. Despite this, the pleading and proof of foreign law remain among the most under-explored topics in Australian private international law. In light of the High Court of Australia's significant change of direction on choice of law since 2000, most notably in cases such as John Pfeiffer Pty Ltd v Rogerson, Regie Nationale des Usines Renault SA v Zhang and Neilson v Overseas Projects Corporation of Victoria Ltd, it is all the more important to answer some of the basic questions about the pleading and proof of foreign law. Who pleads foreign law? What law do they plead? Are they obliged to do so? How do they prove its content? When can local law be applied in the place of foreign law? This article addresses these and related questions with a particular focus on Australian law as it has developed since 2000. It concludes that Australian courts take a more robust and pragmatic approach to these issues than might be supposed. In particular, the so-called presumption of identity is a label that masks a much richer and more complex reality.]

CONTENTS I Introduction II Who Pleads Foreign Law and Why? III Is There Any Obligation to Plead Foreign Law? IV What Sort of Foreign Law Is Proven? V Is Foreign Law a Question of Fact? A 'A Question of Fact of a Peculiar Kind' B Fact, Application and the 'Ultimate Issue' VI How Is Foreign Law Proven? A The Uniform Evidence Acts B Statutory Provisions in Other Jurisdictions C Expert Proof D Problems with Proof: Translated Texts E Problems with Proof: Expert Evidence VII When Can Australian Law Be Applied in the Place of Foreign Law? A Drawing the Proper Distinctions 1 Where the Plaintiff Does Not Establish the Content of Foreign Law 2 Where the Plaintiff Pleads Foreign Law, but Offers Deficient Proof 3 Where the Defendant Pleads Foreign Law, but Offers Deficient Proof 4 Where Neither Party Succeeds in Establishing the Content of Foreign Law B Is the Default Application of Australian Law Unfair to Defendants? VIII Conclusion I INTRODUCTION

When an Australian judge decides a case involving an international element, Australian choice of law rules will sometimes indicate that the applicable law is to be found in a foreign legal system, and not in the law of Australia. How, though, is the content of that foreign law to be determined? This is a central question of private international law: without knowledge of the content of foreign law, the very concept of a true conflict of law becomes meaningless. While international legal harmonisation can remove differences between national laws, (1) and while the enactment of mandatory rules of the forum can obviate the need to prove foreign law at all, (2) the reality is that foreign law is often applicable and often differs markedly from its local counterpart. Whenever a party wishes to rely on such a difference, the pleading and proof of foreign law comes into play.

When foreign law is applicable, one must always bear in mind that it is applicable only because, and only to the extent that, the law of the forum permits it to be so. Australian choice of law rules and Australian rules about pleading and proving foreign law all go towards answering Walter Wheeler Cook's question, namely '[h]ow far can the court of the forum go in applying the rules taken from the foreign system of law without unduly hindering or inconveniencing itself?.' (3) In each case, Australian rules provide the reason for, and the manner of, applying foreign law. While comity and the desire to avoid forum shopping are justifications for those rules, they are not by themselves reasons why foreign law should be applied of its own force. Rather, Australian law always sets the outer limits for the application of foreign law. The actual application of that law in the particular case is a matter for the choice of the parties, subject to the Australian rules of pleading and proof.

Despite the centrality of this issue to private international law, very little has been written on the subject in Australia, and Australian lawyers are largely reliant on the valuable but limited treatment of the subject in the main textbooks. (4) Ironically, as Edward I Sykes and Michael C Pryles note:

Proof of foreign law is often treated as a procedural matter of little importance. In fact its importance can hardly be overstated. The choice of law rules, and the underlying purpose of private international law, can only be effectively implemented if the applicable foreign law is adequately proved or otherwise ascertained. (5) Thankfully, the subject has received greater attention in other jurisdictions. Things have certainly improved since Arthur Nussbaum complained in 1943 that it was symptomatic of the

lack of realism in traditional learning on Private International Law that treatises and textbooks ordinarily make short work of, and not infrequently omit, the subject of proof of foreign law, leaving its treatment to the writers on evidence (procedure). (6) Any writer touching on English law owes a very great debt to Richard Fentiman; (7) US scholarship has for several decades produced a rich literature on the subject; (8) and there are many valuable sources of international or comparative analysis. (9)

Australian lawyers have traditionally been happy to proceed on the basis of a few, largely unquestioned, propositions. First, there is no obligation to allege, let alone prove, foreign law. Secondly, foreign law is a matter of fact to be proved by expert evidence. Thirdly, the burden of such proof lies upon whoever claims that foreign law departs from the law of the forum. Fourthly, in the absence of proof to the contrary, foreign law is presumed to be the same as local law. As we shall see, however, none of these propositions are as straightforward as one might suppose, and the reality is a lot more nuanced than is commonly assumed.

In addition, many traditional attitudes towards foreign law are now open to question after a series of important appellate decisions since 2000 which have had the effect of expanding the amount of potentially applicable foreign law. For example, the adoption in John Pfeiffer Pty Ltd v Rogerson ('John Pfeiffer') (10) and Regie Nationale des Usines Renault SA v Zhang ('Zhang') (11) of the lex loci delicti rule led to the applicability of interstate and foreign law in a way that was not required by the former double actionability rule. (12) Likewise, the characterisation of more issues as being substantive, including limitation periods, has led to a corresponding expansion in the potentially applicable foreign substantive law. In Neilson v Overseas Projects Corporation of Victoria Ltd ('Neilson'), (13) the pleading and proof of foreign law was extended to encompass foreign choice of law rules in addition to foreign substantive or domestic law. Conversely, the important New South Wales Court of Appeal decision in Damberg v Damberg ('Damberg') (14) indicated that local law cannot be applied by default in all cases, and that there will be situations in which parties will be obliged to plead and prove foreign law if they wish to succeed.

Of course, the full effect of some of these recent developments remains to be seen. For example, the High Court has explicitly reserved its opinion about whether the expanded definition of 'substance' will encompass certain aspects of international--as opposed to intranational--litigation. (15) The relevance of foreign choice of law rules in non-tort cases is uncertain, (16) as is the relevance of foreign rules of characterisation. (17) The default application of local law is also a matter of controversy and flux. (18) Despite these uncertainties, the growing importance of foreign law since 2000 makes it timely to reassess this significant but under-discussed area.

As a result, this article aims to provide a useful survey of the pleading and proof of foreign law in Australian courts since 2000. By comprehensively analysing the decided cases, it aims to bring some conceptual clarity to this field by answering the following questions:

* Who pleads foreign law, and why?

* Is there any obligation to plead foreign law?

* What foreign law is pleaded and proven?

* Is foreign law really a question of fact?

* How is the content of foreign law proven?

* When can Australian law be applied in the place of foreign law?

In summary,

* Foreign law is mainly pleaded defensively.

* There is no obligation to plead foreign law, but the lack of any such obligation sometimes causes unfairness.

* Parties plead and prove a remarkably wide variety of foreign law.

* Foreign law is a question of fact, albeit a highly anomalous one.

* The content of foreign law can be proven with greater flexibility than is commonly supposed.

* Australian law can often be applied as a default rule, although not invariably so. The language of presumption is best forgotten.

II WHO PLEADS FOREIGN LAW AND WHY?

After cases like Zhang, one could well imagine that a flood of plaintiffs have pleaded and proven the lex loci delicti to obtain judgment on the merits in claims arising out of foreign torts. The reality, though, is very different: since they have no obligation to do so, plaintiffs almost never invoke foreign law, and the application of foreign law almost never results in a judgment on the merits. Moreover, tort is scarcely the only type of foreign law that arises. While plaintiffs sometimes succeed in cases where foreign law governs some issues, it seems exceptionally rare that they ever do so in a case wholly governed by foreign law. Rather, the typical assertion of foreign law is defensive and interlocutory.

The recent case law provides many examples. At the outset, foreign law might be invoked to justify a stay of proceedings on the grounds of forum non conveniens. Although the High Court has clearly...