Regie Nationale Des Usines Renault Sa v Zhang

• Jurisdiction: Australia Federal only
• Judge: Gleeson CJ,Gaudron,McHugh,Gummow,Hayne JJ,Kirby J,Callinan J
• Judgment Date: 14 March 2002
• Neutral Citation: 2002-0314 HCA C,[2002] HCA 10
• Court: High Court
• Docket Number: S9/2001
• Date: 14 March 2002

Regie Nationale des Usines Renault SA & Anor

Appellants

and

Fuzu Zhang

Respondent

[2002] HCA 10

Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ

S9/2001

HIGH COURT OF AUSTRALIA

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.

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)

ORDER

Appeal dismissed with costs.

Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ.

The facts

1 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.

2 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.

3 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

4 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.

5 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’).

6 In the joint judgment of this Court in Agar v Hyde, it was said2:

‘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.’

Jurisdiction and choice of law

7 Further, it was emphasised in a passage in John Pfeiffer Pty Ltd v Rogerson3 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)

8 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.

9 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).

10 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.

The stay application

11 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...