Regie Nationale des Usines Renault SA v Zhang

The application of the law of the forum has had its defenders. It was the choice of law rule for torts favoured by Savigny, the founder of modern legal doctrine applicable to multilateral claims. Such defenders cautioned against the "wholesale abrogation" of the law of the forum because of its supposed provincialism and inadequacies. Some of the arguments in defence of the law of the forum have been based on the perceived defects in the principal alternative choice of law rules for torts, such as the rule of the place of the wrong; the rule respecting the last event in completing the wrong; the rule obliging application of the law having "the closest connection" with the wrong; or the composite and somewhat unrevealing "proper law of a tort" favoured by Dr Morris.

This Court cannot decide amongst these various options for the choice of law rule by reference solely to legal authority. Questions of legal principle and legal policy must also be considered, as Deane J explained in Oceanic. On the one hand, the "mechanistic" application of the law of the place of the wrong has been described as "absurd". It is said to reflect the thinking of those who "hanker after certainty in their rules of law" without considering the adequacy of the resulting rules from the social and economic point of view. On the other hand, criteria such as "closest connection", "the balance of interests" and "the proper law of a tort" are acknowledged, even by critics of the rule of the place of the wrong, as "flabby" and overly dependent on judicial discretions.

Waiting for legislation: In circumstances revealing such strongly differing opinions on the part of judges and scholars about what the choice of law rule should be, the respondent submitted that it was premature for this Court to adopt any rule for international torts different from that long assumed to be the law in Australia, as stated in Phillips v Eyre. The respondent argued that restraint was specially appropriate because the subject had been considered by the Australian Law Reform Commission and its report was still before the Parliament. Legislative amendment had been adopted in England to abolish and replace the rule in Phillips v Eyre. Although such legislation had initially been opposed in England on the basis that it would result in "freezing" the development of the law in terms of the statute, an Act was eventually passed. This, it was argued, represented the proper delineation between the functions of a court and those of the Parliament.

The respondent submitted that whilst the clarification and expression of the common law for intra-national torts within Australia might be justified on the footing that the Court's previous attempts to state the law had been sharply divided (and even more sharply criticised) and involved the Court's view of what was required by the constitutional context in which the common law had to be expressed, such considerations played no part in the choice of law rule applicable to an international tort such as his was said to be. The re-expression of the choice of law rule with respect to international torts should therefore be left to the legislature. In the meantime, the rule in Phillips v Eyre should be followed.

Response to forum shopping: One complaint about departure from the law of the place where the wrong occurred is that every other choice of law rule inevitably leads to forum shopping. However, critics of observance of the law of the place of wrong have replied that forum shopping is not necessarily to be condemned. According to this opinion there may be no unfairness in allowing an injured plaintiff to enjoy the advantage of the provisions of any law with which it would be reasonable to hold that a defendant ought to have complied and to which the defendant is amenable. The logic of this opinion involves subjecting a defendant to litigation in a place with little or no natural connection with the alleged cause of action and possibly at much inconvenience.

Some legal systems have favoured a choice of law rule giving priority to the connecting factors most favourable to the plaintiff. Even if such a rule ought to be rejected in Australia because it lacks even-handedness, the entitlement to invoke a court with clear jurisdiction and with some connection with the legal wrong, where the alternative might be to deny a party any practical chance of redress, is not, in the view of some commentators, so offensive to notions of justice as to warrant rejection out of hand.

Especially if the courts of the forum reserved to themselves (as this Court has to the courts of Australia) a right or obligation to refuse to implement foreign laws that conflict with important principles of law or public policy, no harm would be done (so the respondent argued) by adhering, as a primary rule, to the settled law, knowing that exceptions (perhaps "flexible exceptions") would exist to modify the application of the primary rule in the case of international torts.

Law of the place of the wrong: Despite these arguments, I have concluded, alike with the joint reasons, and with the same caveats as they express, that the rule adopted in Pfeiffer for the determination of the rights and liabilities in respect of intra-national torts extends to international torts. I agree generally with the joint reasons and with their explanation of the grounds for reaching this conclusion.

My own inclination is to reserve the question whether there is a need to recognise, in the case of international torts, a general ("flexible") exception where the law of the foreign jurisdiction is such as to justify an Australian court's declining to recognise or enforce the law of that place. Because of the Constitution, and the federal nation that it creates, that need does not arise in intra-national torts within this country. Nor, on any view does it arise in the present case. The respondent did not suggest otherwise. Any such exception, as a specific qualification of the primary rule, would therefore better be considered in a case where it was essential for the decision. So far as the supposed "public policy" grounds favoured by the joint reasons are concerned, it is there accepted that in practice they may often be subsumed in the issues presented by the application of a "flexible exception". However, it need not be so. In a case such as Boys v Chaplin, where the "flexible exception" was developed for English law, public policy was not the criterion. Nor could it have been. Applying the law of Malta in that case would not have been contrary to the public policy of the English forum. The "flexible exception" was postulated because it was thought inappropriate to apply Maltese law because Malta had an insubstantial connection with the parties or the proceedings.

However, this said, I would not press my preference to a dissent from the joint reasons in this respect. For most cases, the outcome will be the same. The general rule is that stated in Pfeiffer. In international torts there is an exception to the application of that general rule. That exception may be invoked by reference to public policy considerations that would make the enforcement by the forum of the law of the place of the wrong contrary to the public policy of the forum.

I wish to add some further considerations to those mentioned in the joint reasons in support of adopting the Pfeiffer rule in the case of international torts. I do so because I consider that principle and policy, as well as legal authority, favour the course preferred.

Desirability of a single rule: The starting point for a principled analysis is the acceptance in Pfeiffer of the primary principle of the rule of the law of the place of the wrong. However, the acceptance of that choice of law rule for intra-national courts was influenced (as it had earlier been in Canada) by federal considerations grounded in the Constitution. Although these factors are not, as such, applicable to an international tort, many other considerations support a common rule. Conceptual simplicity certainly favours a single rule.

So far as possible, it is desirable that there should be uniformity in the principles of private international law applied by Australian courts, not only in relation to torts of an intra and international character but also in relation to our treatment of international torts when compared with that of the other countries with which Australians have most connection.

The predominant choice of law rule for torts: The predominant international principle for the choice of law in respect of wrongs (torts or delicts) has long been that the applicable law is that of the place where the wrong was committed (lex loci delicti). One analysis suggests that this principle was established in Europe as long ago as the thirteenth century. At the latest, it was firmly entrenched there by the end of the eighteenth century. It was by direct borrowing from the civilians in Europe that the rule initially became that observed in the United States of America. Phillips v Eyre never gained acceptance in that country. The rule of the place of the wrong was also the rule reflected in the First Restatement on Conflicts of Laws published by the American Law Institute in 1934. Some jurisdictions that previously adhered to applying the law of the place of the wrong have tended more recently towards introducing greater flexibility in these rules. However, this has usually been a result of legislative changes after careful consideration of the issues relating to different types of tort actions with specific rules developed to deal with particular situations. In the United States, where the flexibility has been the result of a judicial revolution which resulted in the widespread abandonment of the rule of the place of the wrong, it has led to considerable uncertainty and difficulty of application. Indeed, the outcome has been described as "hopelessly confused, chaotic, unpredictable, and - despite all laudable efforts to explain it - incomprehensible". Australian law should resist all such temptations.

When advocating the legislation later enacted, the English and Scottish Law Commissions placed evidence before the United Kingdom Parliament concerning the choice of law rules applicable in the jurisdictions of Europe and beyond, in respect of torts or delicts. Their analysis indicated that the rule upholding the law of the place of the wrong is that which commands almost universal contemporary allegiance. It is the rule observed by most jurisdictions of the world: common law, civil law and otherwise. The Supreme Court of Canada regarded its adoption as "axiomatic". In a matter of international law, whatever may be the criticisms that can be levied at the rule, there is a strong premium in Australia's observing the rule upheld by so many and diverse legal systems.

In further support of the foregoing propositions it may be recognised that the rules of private international law exist to fulfil foreign rights and duties, not to destroy them. After a brief flirtation with a different rule for intra-national torts, this Court has now accepted the rule that enjoys overwhelming international observance. There are powerful, perhaps even greater, reasons following that logic into cases involving international torts.

Supporting the preferred rule involves more than adherence to legal symmetry or majority legal opinion. It represents a reflection of the time-honoured maxim locus regit actum. Apart from everything else, this rule has "sure foundations in human psychology". A person will ordinarily assume that he or she is governed by the law of the law area in which the event, critical to legal liability, happens. Admittedly, there may be exceptions. Analysis may confound ordinary expectations. In a particular case, exceptionally, the presence of a long term pre-existing relationship of the parties in the forum may make it unreasonable to attribute to them an ordinary expectation according primacy to the law of the place of the wrong. However, normally it is otherwise. The ordinary expectations of most parties are, I would suggest, that the law of the place of the wrong will govern the rights and duties of the parties. Such expectations are based on notions connected with the usual territorial reach of law. They are usually resistant to its over-reach. Generally speaking, the law should not be applied in a way that takes ordinary expectations by surprise. The normal rule should not be distorted just because, in a particular case, its outcome imposes a burden to a particular plaintiff. The law must be just to defendants as well as plaintiffs. The right to a judicial decision-maker who is impartial as between the parties is expressed in international law, probably implicit in the Constitution and certainly upheld by the Australian common law. The clearer and simpler the applicable rule, the less difficult will it be to advise parties on their rights; the less temptation will there be to shop around for a judicial forum advantageous to one but disadvantageous to another party; and the more even-handed and certain will the law be, and appear to be, to the parties and to society.

The law of tort, although now chiefly compensatory in purpose, has additional objectives of establishing standards of reasonable civic conduct, promoting prevention of wrongs and distributing costs amongst the community concerned. A choice of law rule that permits a plaintiff to pick and choose, according to the forum it selects, the law that would be applied, would derogate from the effective control of a given law area over those aspects of its law. Applying the law of the place of the wrong tends to help defendants to minimise their exposure to risk by accident prevention, to insure effectively and allocate appropriately for potential costs. All of these are reasons for adopting, as the applicable law of an international tort, the law of the place which is classified as the place where the wrong was committed.

Conclusion: applicable law was French: Viewed in the light of all these reasons, the rule in Phillips v Eyre, as it came to be applied, now appears as a "breath from a bygone age". It is left over from an earlier phase of private international law, that never gained acceptance beyond the United Kingdom and its dominions and colonies. It is a rule inappropriate to a time of global and regional dealings, technological advances that increase international conflictual situations and attitudinal changes that reject, or at least reduce, xenophobic opinions about the worth and applicability of the law of other jurisdictions.

I am not blind to the defects of the law of the place of the wrong. It has persuasive critics. Sometimes, for example, it may be debatable as to where precisely the "wrong" occurred. However, when the arguments for and against the competing rules are weighed and the inadequacies of the competing rules are evaluated, the preferable course is to adopt a common Australian standard. For torts, the applicable primary law is that of the place where the tort was committed (lex loci delicti). Accordingly, in the present appeal whether that place was metropolitan France (where the vehicle driven by the respondent was principally designed and manufactured) or New Caledonia (where the alleged defect led to damage to the respondent) the applicable law was in either case, the law of France. The primary judge was correct to so conclude.

Specification of the applicable law: It follows that the reason nominated by the Court of Appeal to justify its disturbance of the discretionary decision of the primary judge was legally incorrect. Because this was the only ground assigned for the suggested miscarriage of the discretion at first instance, the Court of Appeal's judgment cannot survive the attack on it in this appeal. In the ordinary course, the success of that attack would require the restoration of the primary judge's orders. However, because the respondent filed a notice of contention, seeking to support the judgment of the Court of Appeal upon other grounds, it is necessary to deal with those arguments. But first I must call attention to what I regard as a second error in the Court of Appeal's reasoning. It is relevant for what follows.

Requirements of Pt 10 r 6A(2)(b): The Court of Appeal noted that the primary judge had, throughout his reasons, referred to whether New South Wales was an "inappropriate forum". At the outset of its reasons, the Court of Appeal stated that the true issue before his Honour had been whether that State was a "clearly inappropriate forum". Subsequently, the Court of Appeal remarked that his Honour had not used the adjective "clearly". It was acknowledged that that word did not appear in the language of the applicable Rule. However, by reference to the opinions of single judges, the Court of Appeal concluded that the absence from the Rule of the word "clearly" did not "relax the common law test".

In this Court, the appellants contested that opinion. The sequence of events concerning the applicable Rule of Court is not disputed. The original Pt 10 of the Rules was contained in Sched 4 to the Supreme Court Act 1970 (NSW) at the time that it was enacted. That Act came into force in October 1970. The original Rules included par (e) in terms of the language still appearing. However, in 1970, Pt 10 r 1 was expressed to be "subject to rule 2". That rule provided that service of originating process outside the State was not valid unless it was in accordance with the prior leave of the Court; the Court confirmed the service; or the person served waived objection to entering an appearance.

In order to secure the prior leave of the Court, it was necessary for the applicant to prove that he had "a prima facie case for the relief which he seeks". Where this procedure was followed, it was still open to a defendant, served outside the State and hence outside Australia, to apply for the setting aside of the originating process (or service thereof) or to obtain a declaration that it had not been duly served or a discharge of any order giving leave for service of process outside the State.

Subsequently, in June 1988, the Rule Committee of the Supreme Court amended Pt 10 by the adoption of Pt 10 r 6A of the Rules. This Rule abolished the requirement for prior leave. It shifted the initiative to the defendant. Only if the defendant did not enter an appearance within the time limited for appearance was the plaintiff obliged to seek the prior leave of the Court to maintain the proceedings. The new r 6A inserted in Pt 10 of the Rules afforded the Court a discretion ("may") to make an order "of a kind referred to in Part 11 rule 8 (which relates to setting aside etc originating process) on application by a person on whom an originating process is served outside Australia". Without limiting that sub-rule, the Court's discretion ("may") was to apply "on the ground … (b) that this Court is an inappropriate forum for the trial of the proceedings".

This Court's decision in Oceanic was given in June 1988, a few days after Rule 6A was inserted into Pt 10 of the Rules. Needless to say, no reference was made to the terms of the new rule in the decision in that case. It would not then have been known to this Court. In December 1988 further amendments to Pt 11 r 8(1) of the Rules, approved by the Rule Committee, were gazetted. These amendments added five new orders which the Court could, in the exercise of its discretion ("may"), grant on the application of a defendant objecting to proceedings. The new orders included ones that:

"(g) declare that the Court has no jurisdiction over the defendant in respect of the subject matter of the proceedings; [and] (h) decline in its discretion to exercise its jurisdiction in the proceedings". The decision of the Court of Appeal of New South Wales in Voth was given in February 1989. In his reasons in that Court, Gleeson CJ referred to the making of the new Pt 10 r 6A of the Rules which, he said, "was not in force at the time of the present application". His Honour remarked that "[t]here was no occasion for argument before us as to the construction and application of the rule in the light of Oceanic Sun Line and I express no view on the matter. The present case concerns the position as it stood prior to amendment of the rules."

When, however, Voth reached this Court, the amendment to the Rules became the subject of submissions by the parties. The respondent argued that it should be left to the States and Territories "to decide their own test for staying proceedings". It pointed out that "[t]his has been done in New South Wales (Rules of the Supreme Court, Pt 10.6A(2)(b)) and Victoria (Rules of the Supreme Court, r 7.05(2)(b))."

The decision of this Court in Voth was published in December 1990. The joint reasons in that case noted the variety of rules that by then provided for proceedings in Australia against a party outside the jurisdiction. In his minority opinion, Toohey J drew attention to the terms of Pt 10 r 6A of the Rules. His Honour pointed out that what a defendant had to show was that the Supreme Court "is an inappropriate forum for the trial of the proceedings". Referring to the additional change that had come about, by which a party proceeding against a foreign defendant no longer needed to obtain prior leave of the Court, Toohey J said:

"Such rules represent a departure from the traditional approach to interference with the jurisdiction of a foreign country mentioned earlier in these reasons. It would be anomalous if a defendant served out of the jurisdiction without leave bore the onus of setting aside service but a plaintiff who had obtained leave to serve out of the jurisdiction continued to carry the onus if service was challenged. The notion that, unless the onus remains on the plaintiff who has obtained an ex parte order for service out of the jurisdiction, the plaintiff will have an 'enduring advantage' sits rather uncomfortably with the onus placed by the rules of court referred to in this paragraph. That may say no more than that this area of the law has not been noted for its clarity or certainty." Duty to obey legislative texts: In the joint reasons in this appeal the opinion has been expressed that, notwithstanding the language of Pt 10 r 6A, the meaning of the applicable rule was to be found "in authoritative Australian decisions … construing" the "judge-made doctrine". That doctrine applied to "procedures established by the Rules". The joint reasons state that the Rules now in force do not "displace and provide a substitute for that doctrine".

With all respect, I regard this view as fundamentally mistaken. I dissent from the notion that judges are authorised to adhere to their "doctrine" where a superior law making power, whether in the form of the Constitution or legislation or rules validly made under legislation, has entered the field. In such cases, "judge-made doctrine" yields. It then becomes impermissible for judges to adhere to their "doctrine" if the written law is in any way different. Their duty is to obey the written law.

In more than one recent decision, this Court has had occasion to refer to an unfortunate tendency of courts and lawyers in Australia to ignore legislation and instead to analyse legal problems by reference to judicial exposition. In one case this tendency was described as involving an inclination to "concentrate on judicial exposition of legal concepts in preference to analysis of statutory provisions that contain the applicable law". It is my view that "[t]his tendency should be resisted." Not occasionally or selectively. Always.

In these opinions, I believed that I was reflecting a unanimous opinion of this Court amounting, in effect, to a correction to those lawyers who adhered to judicial authority when it had been overtaken by law bearing the imprimatur of legislation and the superior authority that legislation carries with it. For example, in The Commonwealth v Yarmirr the joint reasons of Gleeson CJ, Gaudron, Gummow and Hayne JJ responded to an attempt to divert this Court's attention from the applicable statute to the pre-existing common law. "It is of the first importance", their Honours said, "to recognise that it is in the Act that the rights and interests which are claimed by the claimants must find reflection. The relevant starting point for determining the controversies in the present matters is the Act". In precisely the same way, and for the same reasons, the starting point for analysis in this case is the provisions of the Rules. It is of the first importance that the language of the Rule, and not the common law that it replaced, should govern the rights and interests of the present parties. With due deference, I regard the dismissal of the actual text of the Rule applicable in the present case as a classic instance of the very error which this Court has repeatedly condemned in its recent instruction of others. The rule that is appropriate to others should be observed, as an example, by ourselves.

Where a rule-maker, validly acting under statutory power, has spoken, the law appears in that text, not in prior judicial utterances. To the extent that there is a difference between the text and those utterances, it is a rudimentary mistake for the decision-maker to start from the presumption that the difference is unintended or mistaken: indeed to start the task of expounding the applicable law anywhere else than in the text. Unless judges insist on this principle, the dead hand of "judge-made doctrine" will hang forever above legislation. Lawyers and others will continue to cherish judicial language instead of applying legislative language. The error must be stopped because it is basic. It must be stopped by this Court.

The primary judge did not fall into this error. He addressed his attention, correctly and consistently, to the language of the applicable rule. For this, the respondent charged him in the Court of Appeal with legal error. The Court of Appeal presumed that the primary judge had erred but had actually intended to add the word "clearly" to his explanation. In my view, correctly, he did not. That word is not in the language of the applicable Rule.

Whether or not, subjectively, the Rule Committee of the Supreme Court of New South Wales in 1988 intended to modify the previous common law is irrelevant. Until Pt 10 r 6A of the Rules was introduced, the language of the Rules committed a discretion to the Supreme Court in general terms ("may"). Such language was apt to invite incorporation of the common law elaboration as expounded by this Court. It was in this circumstance that the "clearly inappropriate forum" found its way into Australian law. But rule-makers had already begun introducing their own particular standards. Those standards now govern the field. The "clearly inappropriate forum" test had to give way to the applicable Rule. The specificity of statutory language expels the generality of the common law.

Conformity with international law: If there were any doubt about what the express language of the Rule required (and I think there is none), a further reason supports giving effect to Pt 10 r 6A of the Rules in the terms in which it appears and not in the more ample terms urged by the respondent by reference to the common law as applied in New South Wales by the Court of Appeal. The "long arm law" in which the relevant Rule appears may, in some cases, challenge the general principles of international law that ordinarily limit territorially the exercise of the judicial power of the courts of a particular law area. In most circumstances, the language of the rule adopted by the Rule Committee of the Supreme Court, and thus made part of the written law of the State, is more closely conformable with the principle of international law than the "clearly inappropriate forum" rule. In the case of ambiguity as to what the local Rule of Court means, this Court should prefer the exposition of Australian law that conforms to public international law rather than one that may be inconsistent.

It follows that the Court of Appeal also erred in its reasoning when it came to re-exercise the discretion which it incorrectly found had miscarried before the primary judge. It applied a "clearly inappropriate forum" test in refusing relief to the appellants. That was wrong. It went beyond the test stated in the governing Rule. This is a further reason why the judgment of the Court of Appeal must be set aside by this Court.

A discretionary decision: Subject to three matters the respondent's submissions in his notice of contention amounted to no more than an attempt to recanvass the discretionary considerations that were weighed by the primary judge and resolved in favour of the provision of a stay of the proceedings in the Supreme Court.

The primary judge accepted that the decision was "very difficult" and "troubling". Far from warranting intervention, to substitute the opinion of other judicial decision-makers, these considerations are normally reasons for appellate restraint. Restraint is observed unless one of the established grounds is made out for disturbing the primary judge's exercise of discretion. As the ground nominated by the Court of Appeal was erroneous, it is necessary for the respondent to demonstrate another, and different, ground to unlock the barrier to appellate review. Otherwise, the primary decision will stand. The mere fact that appellate judges might themselves have come to a different conclusion is not enough. Otherwise, few if any such applications would ever conclude at first instance.

Considering the competing factors: The primary judge said that he had "weigh[ed] all the factors". He approached his task in the manner established by this Court in Voth. He exercised his discretion "based upon the competing connexions of the respective forums with the subject-matter of the proceedings". Within the context of the factors mentioned, I see no error that permits disturbance of his conclusion by this Court. On the contrary, his analysis was painstaking, thoughtful and correct.

In favour of "a hearing in Sydney" the primary judge nominated "practical considerations", including the presence of the respondent, his son who was with him in Noumea when he was injured, three expert engineering witnesses, medical witnesses who would depose to his injuries, other witnesses as to future care, the modest resources of his family, his access in Australia to experienced legal advisers prepared to act for him on the basis of contingency fees and the fact that the issue likely to consume most of the time in any trial (namely the adequacy of the design and manufacture of the roof and supporting structures of the vehicle in question) would involve a conflict between experts who, inferentially, could give their testimony anywhere.

Another consideration which the primary judge took into account was the absence of the procedures of discovery and interrogatories in a product liability case under French law and the tendency of that law's procedures to resolve disputes, to a large extent, on written materials without cross-examination, which is not usually permitted.

On the other hand, the judge also took into account the fact that witnesses, other than the respondent and his son, who either saw the accident or the pre- or post-accident circumstances in Noumea included three residents in Noumea and one, a police officer, formerly of Noumea, who now resides in metropolitan France. This evidence, according to its written form, "points to the substantial cause of the accident being the negligent driving of the [respondent]".

The doubt that the respondent could secure "quality and experienced representation" in New Caledonia or France in such a difficult case without making some payments towards legal fees was given weight. So were the far greater resources of the appellants. But the primary judge concluded that the case had a "close connection with France and New Caledonia". The allegedly defective design and manufacture probably took place in France. The accident happened in New Caledonia. That was the place of the applicable law, a consideration often telling in such decisions. Any failure to warn the respondent about alleged risks occurred in New Caledonia where the vehicle was hired. The absence of legal aid there, although not irrelevant, was not itself a basis for refusing a stay. Nor was the absence of a jury; the need to conduct the proceedings in the French language; or the fact that French civil procedure is different from that of Australia. The primary judge recognised that the French legal system, of which that of New Caledonia is part, was, and is, one of sophistication and integrity meriting international recognition and acceptance. Its procedures were "well suited to the resolution of the major issues" of the case. Its judges are part of the French judicial system.

I see no error in the primary judge's nomination of the respective connecting factors. Nor, subject to what follows, were there any significant omissions. The approach taken by the primary judge, although founded in the language of the applicable new Rule, was similar to that observed by the Justices of this Court in Voth. There, this Court reversed the judgment of the Court of Appeal and provided the stay of the action which the appellant had urged in that case should be more conveniently brought in the United States. Where the primary judge has proceeded as this Court did in Voth, and where the Court of Appeal's intervention has been shown to have been unwarranted, in terms of the reasons it advanced, the proper course is to restore the original discretionary order.

The burden of proof: The respondent, however, suggested that another, and different, error on the part of the primary judge had been shown. This was his failure to approach his discretion with the presumption that, the respondent having lawfully invoked the jurisdiction of the Supreme Court, the appellants bore an onus, suggested to be a heavy one, to displace the legal right thereby engaged under a valid local Rule.

This point has no validity in this case. The joint reasons in Voth emphasised that it would not ordinarily be necessary to give detailed reasons as to "the presence or absence of particular connecting factors". The way in which, in this Court, the joint reasons approached the "factors" relevant to Voth is precisely the way observed by the primary judge here. The Justices of this Court in Voth did not feel it necessary to spell out the obvious fact that a stay is an exceptional intervention that accepts the validity of the invocation of the Court's jurisdiction in the first place. If that validity had been questioned, the proper relief would not have been a stay but some other relief. A stay of proceedings being the realm of discourse, and the location of the burden of persuasion being incontestably upon the appellants, there was no need for the primary judge (any more than for the joint reasons in Voth) to belabour the point of burden of proof. Why should we assume that the primary judge ignored these elementary considerations when they were equally not mentioned in this Court's exposition?

What is important about the burden of proof is a clear understanding of the test to be applied. The respondent, and the Court of Appeal, considered that it was the "clearly inappropriate forum" test. As I have shown, that was legally erroneous. The deletion of the adjective "clearly" makes the burden carried by the appellants commensurately lighter. The word "clearly" in the common law rule adds to the difficulties faced by any applicant for a stay. But under the Rule, the necessity to prove that the forum was "obviously" or "clearly" inappropriate - and to that extent that continuation in the forum would be vexatious and oppressive for the appellants - was removed. As strangers to the jurisdiction, the appellants had simply to demonstrate (the onus being on them) that the forum of the Supreme Court was "inappropriate". To decide whether that demonstration had been made out it was necessary, as Voth established and illustrated, to weigh the competing "connecting factors". As this is what the primary judge did, no basis exists for disturbing his judgment.

The competing forum: The respondent also relied on the fact that, during argument in the Court of Appeal, counsel then appearing for the appellants had conceded that the forum, alternative to New South Wales, which was to be considered, was New Caledonia, not France. It was suggested by the Court of Appeal that "neither party has any particular connection with New Caledonia" and that the respondent "had only a transitory and accidental connection", and that "the alleged tort did not occur there". On that footing, the Court of Appeal concluded that New Caledonia could not be seen as an "appropriate forum", "except as some sort of geographic compromise".

It is important to recall that the primary judge did not select between France or New Caledonia as the venue for the trial if the proceedings in New South Wales were stayed. In this, he was also correct. His attention was addressed to whether the initiated proceedings should be stopped by the Court's declining, in terms of its rule, "in its discretion to exercise its jurisdiction". He expressly left it to the respondent to decide whether to proceed in the courts of France or New Caledonia.

The primary judge reflected this facility in his second order. Before the Court of Appeal, counsel indicated that the appellants' "actual" view was that the case should be fought in France. New Caledonia had been put forward as "in some way meeting the convenience of the plaintiff" yet maintaining the appellants' insistence on the primacy of a jurisdiction in which the law of the place of the wrong (France) would apply. It is not correct to say, as the Court of Appeal did, that "the alleged tort did not occur" in New Caledonia. It did. Even gross defects in the design and manufacture of a vehicle in France, would not amount to a tort of negligence under the common law, or a civil wrong under French law, unless they occasioned damage to the respondent. This did not occur until the accident happened in New Caledonia. But it did happen then. That, therefore, is the place where the alleged wrong was committed.

The respondent asserted that the appellants had conceded in the Court of Appeal that it would be "oppressive to the respondent to require him to conduct proceedings in France". No such concession was made. Quite properly, the appellants left the alternative venue to the respondent, whilst endeavouring, so far as possible, to meet his convenience. No error has been shown in the way the primary judge proceeded in this regard. I would dismiss the respondent's contentions to the contrary.

Legal aid and assistance: As the primary judge recognised, the major disadvantage which the respondent would face, were he required by a stay to bring his proceedings in France or New Caledonia, involved the unavailability of legal aid and the loss of immediate control of the proceedings by his present solicitors and counsel. The importance of such facilities has been emphasised by the House of Lords. The primary judge did not overlook this consideration. Nor do I. It must be given due weight.

On the other hand, because under French civil procedure, much of the evidence would be reduced to documentary form, there is no reason to suppose that the continuing involvement of the respondent's Australian lawyers, including on the contingency basis to which they have agreed, would terminate with a change of venue for the trial of the proceedings. In any case, the crucial evidence in this case (and the only apparent way of overcoming the eyewitness accounts of the accident that tend to lay the blame squarely upon the respondent's driving) is expert evidence about safe car manufacture and design. Such testimony would be available in detailed written form, as much as in France or New Caledonia as in Australia. If oral evidence were permitted, it would be available in any of the venues and, presumably, a filmed presentation of evidence or videolink could be arranged in any of the venues postulated.

The availability of legal aid, or of lawyers willing to appear for a plaintiff on a contingency, cannot be determinative of applications such as the present. The logic of that proposition would suggest that, in every case in which an Australian, or person resorting to an Australian court, suffered damage from a tort occasioned overseas and continued to suffer some damage in Australia, where that person could secure legal assistance in Australia, he or she could effectively elect for trial in an Australian court and no relief on the ground of inconvenient forum could be given to a foreign defendant, not otherwise present in the jurisdiction. Such a consequence would not only be unjust to such defendants. It involves public costs inherent in the provision of court services in this country effectively for the trial of torts having only the most trifling legal connection with an Australian jurisdiction. There is of course the legal connection afforded by the "long arm" Rule. But the existence of such a foundation for jurisdiction is assumed. When it comes to the application to this case of Pt 10 r 6A of the Rules, the considerations of convenience favoured the conclusion which the primary judge reached.

To the extent that it was proper, the primary judge took the practical consideration of the availability of lawyers to help the respondent "obtain justice" into account. He acknowledged that the final decision was finely balanced. There is no proper basis for disturbance of the conclusion that he reached. What weighs most heavily in the scales for the respondent is either natural sympathy for his predicament or a return to the chauvinistic attitudes of Phillips v Eyre as it was interpreted. Each of those considerations is legally illegitimate. This Court should not give way to them. In this age, such parochialism has no place in the law of inconvenient forum.

It should not be thought that the problems presented by the present appeal are unique to the Australian legal system. In France, subordinate courts have, from time to time, declined to provide what is, in effect a stay against proceedings instituted by French nationals in French courts in respect of torts (usually motor vehicle accidents) occurring in other jurisdictions. Sometimes such litigants have asked for the enforcement of French law, rather than the law of the place where the tort occurred. However, the Cour de Cassation of France has insisted on the principle that the law of the place of the wrong is "la loi étrangère normalement applicable".

In a case such as the present, this Court should be no less principled. Having, at last, rejected Phillips v Eyre, as the applicable principle for choice of law in Australian courts, this Court should not succumb to a new provincialism in the guise of exercising the discretion to stay proceedings commenced in an inappropriate forum. Having established the applicable rule (with which I agree), this Court should follow its logic. It should certainly do so in this case, where no basis exists for upsetting the discretionary decision of the primary judge.

The appeal should be allowed. In accordance with the conditions accepted by the appellants on the grant of special leave to appeal, there should be no order for costs in this Court. The orders of the Court of Appeal should be set aside, except as to costs. In place of those orders, it should be ordered that the appeal to that Court be dismissed.

On 6 February 1991, the respondent, a resident of Australia, was driving a hired Renault sedan motor vehicle near Touho in New Caledonia, a French territory subject to French law. The vehicle travelled across the roadway, hit a 40 cm high earth embankment, somersaulted twice, stopped on its roof, rolled over again, and slid down a 30 metre high ravine towards the sea, coming to rest at the bottom of the ravine. The roof of the car was crushed and folded into the passenger compartment. The respondent suffered injuries. After a fortnight in hospital in Noumea, severely and permanently disabled, he returned to Australia.

The respondent sued the appellants, French corporations, as the manufacturer and distributor respectively of the vehicle, in proceedings brought in the Supreme Court of New South Wales. Neither of the appellants has an office nor carries on business in Australia, although vehicles which it manufactures outside this country are sold within it by motor vehicle dealers here. The appellants made application for the setting aside of the statement of claim and for the stay of those proceedings on the ground, relevantly in this Court, that New South Wales was an inappropriate forum. Smart J, at first instance, granted the stay upon conditions. The Court of Appeal of New South Wales (Beazley, Stein and Giles JJA) unanimously upheld an appeal against the decision of Smart J. The question in this Court is whether their Honours were right to do so.

The respondent's statement of claim contained the following allegations which, for the purposes of the current application should be taken to be true:

"1. The Plaintiff is and was at all material times domiciled in New South Wales and has resided continuously in Sydney since 1986. 2. The First Defendant and/or the Second Defendant designed and/or manufactured and/or distributed or caused or permitted to be distributed the Renault series of motor vehicles, directly or by its servants or agents. 3. In the course of such distribution the First Defendant and/or the Second Defendant caused or permitted such motor vehicles to enter and/or be sold and used in Australia and in particular, New South Wales and in the South Pacific region and in particular New Caledonia. 4. The First Defendant for the purposes set forth in paragraph 3 hereof applied for registration in Australia of the name 'Renault' and its accompanying logo as a trade mark and was granted renewals of that registration, inter alia, pursuant to applications lodged by it in Australia in 1974, 1984 and 1992. 5. The First Defendant and/or the Second Defendant at all material times advertised and promoted or caused or permitted to be advertised and promoted the Renault series motor cars, inter alia, in New South Wales and in New Caledonia as reasonably safe for motoring purposes and for use as a motor vehicle generally and, inter alia, in New South Wales and New Caledonia. 6. As a result of the matters set forth in paragraphs 2, 3, 4 and 5, the Renault series of motor vehicles entered into circulation in New South Wales and elsewhere on the Australian market. 7. On diverse occasions between 1986 and 1991 in Sydney the Plaintiff was a passenger in a Renault motor vehicle and thus became familiar with the Renault car as a motor vehicle and its use and acceptance in New South Wales, inter alia as the result of the actions of the Defendants set out in paragraph 5 hereof. 8. At all material times the First Defendant and/or the Second Defendant and each of them: (a) was duly incorporated and liable to be sued in its corporate name; (b) carried on business involving the design and/or manufacture and/or distribution of motor vehicles for use, inter alia, by members of the public; (c) knew or ought to have known that vehicles manufactured and/or designed and/or distributed by it or caused or permitted to be distributed by it would or might be involved in road accidents; (d) knew or ought to have known that vehicles manufactured and/or designed and/or distributed by it or caused or permitted to be distributed by it would or might be involved in road accidents in which those vehicles would or might roll-over; (e) knew or ought to have known that in the event of an accident, the risk of injury and/or aggravation of injury to the occupants, particularly those occupants restrained by seatbelts, would be significantly increased if the roof of the vehicle crushed into the passenger compartment; (f) knew or ought to have known or foreseen that the likelihood of the roof of the vehicle crushing into the passenger compartment could be substantially decreased or eliminated if the roof, roof pillars and connecting structures and supports of the vehicles were of sufficient strength and structural integrity; (g) knew or ought to have known or foreseen that, in the event of an accident involving one of the vehicles designed and/or manufactured and/or distributed, by it there was significant risk that occupants of the vehicle would be injured, or would have their injuries aggravated and made more severe, as a result of the roof crushing into the passenger compartment; (h) knew or ought to have known or foreseen that the roof, roof pillars and connecting structures and supports of the vehicles were at risk of or likely to or susceptible to crushing into the passenger compartment on roll-over of any such vehicle by reason of their design; (i) knew or ought to have known or foreseen that the defective design referred to in subparagraph (h) hereof could be remedied by design changes which it ought to have made in the interests of the safety of passengers in its motor vehicles. 9. On or about the 1st February 1991 the Plaintiff travelled with his son from Sydney to New Caledonia, intending to return to Sydney on the 8th February 1991. 10. (a) On or about 5th February 1991, the Plaintiff hired a motor vehicle (hereinafter referred to as "the Vehicle") manufactured and/or designed and/or distributed by the First Defendant and/or the Second Defendant. PARTICULARS Renault L53H05 Sedan registered in the name of Laubreaux AutomobiIe Company Pty Ltd. (b) At all material times the Defendants and each of them knew or ought to have known or foreseen that the motor vehicles designed and/or manufactured and/or distributed in the course of its business might be hired and used by persons in circumstances like those pleaded in subparagraph (a) of this paragraph. 11. Immediately prior to hiring the Vehicle as aforesaid the Plaintiff was offered a choice between the Vehicle and other vehicles and selected the Vehicle because of the matters set forth in paragraphs 3, 6 and 7 hereof. 12. On or about 6 February 1991, while driving the Vehicle near Touho, New Caledonia, the Plaintiff was involved in an accident in which the Vehicle rolled over.

PARTICULARS At or about 12:00 p.m. on the road between Touho and Poindimie near Ponandou. 13. During the accident and roll-over and as a result of it, the Vehicle's roof was crushed into the passenger compartment such that it struck the Plaintiff on the head and caused the Plaintiff to sustain injury. 14. The injuries suffered by the Plaintiff occurred as a result of the negligence of the First Defendant and/or the Second Defendant. PARTICULARS OF NEGLIGENCE (a) Manufacturing and/or designing and/or distributing and/or supplying and/or causing or permitting to be distributed or supplied a vehicle the design and/or manufacture which was defective in that: (i) the pillars and associated supports were of insufficient strength to prevent or substantially reduce the likelihood of the roof of the Vehicle being crushed into the passenger compartment in an accident and/or roll-over; (ii) the roof of the Vehicle was of insufficient strength to prevent it being crushed into the passenger compartment in an accident and/or roll-over; (iii) the design and/or manufacture of the Vehicle were inadequate to prevent or reduce the risk of the roof being crushed into the passenger compartment in an accident and/or roll-over. (b) The First Defendant and/or the Second Defendant failed to warn the Plaintiff or cause him to be warned of the risk of roof crush to occupants of the Vehicle, especially those wearing seatbelts. (c) The First Defendant and/or the Second Defendant failed to warn the Plaintiff or cause him to be warned of the substantial risk in driving a vehicle designed and/or manufactured in the manner particularised in paragraph (a) above. (d) The First Defendant and/or the Second Defendant failed to warn the Plaintiff or cause him to be warned of the substantial risk in driving a vehicle designed and/or manufactured in the manner particularised above whilst wearing a seatbelt. (e) The First Defendant and/or the Second Defendant failed to take the remedial action referred to in paragraph 8(i). 15. As a result of negligence of the Defendants and each of them the Plaintiff has suffered and continues to suffer injury, loss and damage. 16. Further or in the alternative, at all material times the governing law was the law applicable in New Caledonia. 17. By reasons of the matters hereinbefore pleaded, the Plaintiff and the First Defendant and/or the Second Defendant were in a quasi-contractual relationship and/or a relationship which, as a consequence of the operation of the governing law, gave rise to obligations owed by the Defendants and each of them to individuals including the Plaintiff who might drive the vehicles designed and/or manufactured and/or distributed by the First and/or the Second Defendants or caused or permitted to be distributed by them or either of them. 18. By reason of that quasi-contractual relationship: (a) the First Defendant and/or the Second Defendant owed the Plaintiff an obligation and/or duty to take care in the design and/or manufacture of the Vehicle; (b) the First Defendant and/or the Second Defendant represented and/or warranted to members of the public including the Plaintiff that the Vehicle was designed and/or manufactured so as to afford adequate protection to the occupants in the event of an accident and/or roll-over. 19. The Plaintiff relied on the representation pleaded in paragraph 18(b). 20. By reason of the matters hereinbefore pleaded: (a) the First Defendant and/or the Second Defendant has breached its said obligation and/or duty; (b) the said representation was false and/or the said warranty has been breached. 21. By reason of the matters pleaded in paragraph 20, the Plaintiff has suffered injury, loss and damage. PARTICULARS THEREOF The Plaintiff repeats the particulars set forth in paragraph 14 hereof. PARTICULARS OF INJURIES Spinal injury, concussion and loss of consciousness, shock and sequelae.

PARTICULARS OF DAMAGES (a) The Plaintiff has as a result of his injuries lost monies and continues to lose monies that he otherwise could and would have earned in Sydney, details of which will be furnished in due course. (b) The Plaintiff has incurred and continues to incur in Sydney medical, hospital and equipment expenses details of which will be provided when they have been ascertained. PARTICULARS OF OUT-OF-POCKET EXPENSES … Damages including exemplary damages. PARTICULARS OF CLAIM FOR EXEMPLARY DAMAGES The Plaintiff relies on the matters set forth in paragraphs 8 and 14 hereof and the gravity of the danger thereby created and the minimal cost of its rectification. (ii) Interest thereon. (iii) Costs. (iv) Such further or other relief as the nature of the case may require." The evidence before the Court of substantive French law, the law applicable in New Caledonia, was as follows:

"6. The relevant provisions in this case include articles 1382, 1383, 1384 which enable an action for damages to be taken against the manufacturer of a product by a person injured by the product. In such an action, it is necessary to prove negligence or a design defect on the part of the manufacturer. 7. In relation to liability, statements of independent witnesses are prepared and submitted to the court. Oral testimony is rarely given unless a direction is made by the Judge due to a conflict of evidence contained in the written statement. 8. A Judge would assess damages once liability is proven under the following heads of damage. (a) General damages to cover bodily injury, pain and suffering and loss of amenities; (b) Out-of-pocket expenses which would include past and future medical treatment expenses, including domestic and nursing care at home; (c) Past and future wage loss; (d) Home modification to cope with wheelchair access and other comforts. 9. In cases of this nature, the assessment of damages is based upon the reports of a court appointed expert. In circumstances where the plaintiff resides out of New Caledonia, the court would appoint a medical expert from the place of the plaintiff's residence. 10. The court appointed doctor would examine the plaintiff and make a determination as to diagnosis of injuries, disabilities and prognosis. An assessment would then be made as to percentage incapacity. A report would be prepared and submitted to the Court of First Instance in Noumea. 11. General damages are assessed by the Judge after careful consideration of all the medical evidence adduced. Permanent physical and intellectual impairment, pain and suffering, permanent disfigurement, loss of amenities of life are all factors considered when making the determination as to general damages." It is not a contention of the appellants that the apparent unavailability of exemplary damages under French law is a factor relevant to the matter that the Court has to decide.

In his reasons for judgment at first instance, Smart J accepted that because the respondent had suffered damage in New South Wales and will continue to do so, the Supreme Court of New South Wales was capable of exercising jurisdiction in the case. His Honour gave consideration, however, to the law which would have to be applied if the case were to be heard and determined in New South Wales with respect to the issue whether the Supreme Court of New South Wales was an inappropriate forum. His Honour held that because the events causing the respondent's injuries occurred in Noumea, a French territory, and that the vehicle was manufactured by a French company, the law to be applied was French law. His Honour referred in detail to some of the evidence which had been placed before him:

"Associate Professor J D Yeo has stated that the plaintiff has had a complete loss of motor power and sensation below T5 spinal level (nipple line) and will remain permanently paraplegic following the serious spinal injury sustained in the accident. He has received a lot of care in the past and will need a lot of care in the future and special provision will have to be made for him. It was common ground that the plaintiff had suffered damage in New South Wales and will continue to do so and that this Court had jurisdiction. See SCR Part 10 Rule IA(e). The plaintiff proposes to lead evidence from three expert witnesses of considerable experience and standing, resident in Australia, to the effect that the car 'roll over' phenomenon is well known and accounts for an appreciable percentage of accidents involving serious injuries or fatalities (5 to 10 per cent), that the Renault 19 sedan had a roof which was not of sufficient strength to withstand roll over damage and crushed too easily, that the cost per vehicle to provide a car roof of sufficient strength is comparatively small with estimates ranging from $20 to $300 and that if a roof of sufficient strength had been provided the plaintiff would probably not have been seriously injured. It has been assessed, with reasons in justification, that the Renault 19 sedan did not drop onto its roof from a height in excess of 0.5 metres. The plaintiff's experts desired to obtain details of roof crush tests carried out by the defendants and others and the relevant design and manufacturing papers. These have not been produced. There is also material relating to some American tests and standards. Both the defendants are French companies, have no presence in Australia, maintain no office in Australia, employ no one in Australia and are not registered to do business in Australia pursuant to the Corporations Law or at all. Renault Australia Pty Ltd was de-registered in Australia in 1992. Since 1984 the first defendant has held registration of its trade mark comprising 'Renault' and accompanying logo in Australia in relation to a wide range of vehicles. Renault sedans are seen on the streets of Australia but since about June or July or possibly September 1991 this is because Volvo Car Australia Pty Ltd distributes them in Australia. About that time the first defendant entered into an agreement with Volvo Australia Pty Ltd (now Volvo Car Australia Pty Ltd) whereby the latter purchases vehicles from the first defendant in France and sells them to various car dealerships throughout Australia. In his report of 29 November 1996 Mr N Gillies states that versions of the Renault 19 four door sedan have been sold in Australia since 1991. A Press Release of 11 September 1991 of Volvo Australia Pty Ltd announces the decision of Volvo to become the Australian importer of Renault cars. It refers to a 1990 agreement under which the first defendant and Volvo acquired shares in each other. It extols the virtues of the Renault 19 four door sedan. In a further Press Release of that day the safety features of the Renault 19 are stressed and it is asserted that the Renault 19 has passed all European safety tests. An undated 'Renault 19' pamphlet believed to be issued after July 1991 states 'The roof beam, rear pillar and guard designed to offer roll over as well as side and rear impact strength and absorption.' At the present time there is limited information about the roof strengths of Renault 19 sedans used in New Caledonia. The materials reveal that the Renault 19 involved in the accident was registered on 21 August 1990 and had done 13265 km at the time of the accident." His Honour next referred to several practical considerations, some of which may be in contention in varying degrees: the prospect that the majority of witnesses at trial would be witnesses as to damages and living in Australia, although their evidence might, in many instances, be reduced to, and received in writing; experts not confined to Australian residents would be required to give evidence; witnesses who actually observed the accident live in New Caledonia; pre-trial discovery and interrogatories are not available in French proceedings; the respondent and his family are in modest circumstances, and his lawyers in Australia are acting on a contingency basis; the appellants have considerable resources; proceedings in New Caledonia would probably cost much less than proceedings in New South Wales; and, the real and major contest at trial would be between the experts called on each side. His Honour did not think that linguistic differences and the absence of a jury were factors of significance. It was also his opinion that there was no arguable case of a failure, on the part of the appellants, to warn in New South Wales.

Smart J then said that the case had a close connexion with France and New Caledonia and, that, in reliance on Voth v Manildra Flour Mills Pty Ltd, he would regard the residence and the continued suffering of damages in New South Wales as factors of relatively little weight.

I set out some passages from his Honour's reasons which were the subject of some submissions in this Court by the respondent:

"As the defendants carry out their design and manufacture work in France and the relevant acts or omissions took place there, the design and manufacturing standards for car roofs in France and probably also in Europe will be relevant to their liability, if any. That is better determined by a French Court administering French law. … This case has a much closer connection with New Caledonia and France than with New South Wales. The case concerns a sedan allegedly defectively designed and manufactured in France by a French company, hired in a French Territory and involved in an accident in that same French Territory. France and New Caledonia have courts and procedures suited to this case and a judicial system of considerable standing which is internationally recognised and accepted. The troubling problem is the plaintiff's lack of funds and need for financial assistance to obtain justice. I have found this a very difficult case. After weighing all the factors I have concluded that I should grant a stay of both causes of action until further order." And, for completeness, I repeat the conditions upon which his Honour was prepared to grant the stay:

"(a) The defendants submit to the jurisdiction of the Courts of New Caledonia; (b) The defendants not raise and waive any defence based on a time limitation provision; (c) The defendants not apply for security for costs or similar relief in respect of any action commenced by the plaintiff arising out of the accident and the design and manufacture of the car; (d) The defendants meet the costs of any independent Court appointed expert." The appeal to the Court of Appeal

Stein JA (with whom Beazley and Giles JJA agreed) did not think that anything turned upon the reference by Smart J to an "inappropriate forum" rather than to a "clearly inappropriate forum" which, Stein JA thought was the expression that posed the proper test: that already his Honour was conscious of and had sought to apply, "correctly", the latter as the test.

The conclusion of Stein JA is to be found in the following paragraphs:

"As I have said, Smart J found that '[t]he substantive law to be applied is French law'. This finding was not merely for the purpose of the second limb, justiciability, in the McKain test (since justiciability was not in issue). It was a finding that French law would determine liability as the substantive law to be applied. I am satisfied that the succeeding paragraph of the judgment confirms this to be so. The finding was an unnecessary and arguably premature ruling, if not incorrect. As has been discussed, it is arguable, applying Thompson v Hill, that the substantive law to be applied would be that of New South Wales. In these circumstances, did his Honour's finding on the substantive law to be applied infect his discretion causing it to miscarry? It is clear from his reasoning that his Honour placed great weight upon French law being the substantive law to be applied by the New South Wales court. Indeed it seems that it was the decisive matter which determined the exercise of the discretion, his Honour having earlier said that practical considerations tended to favour a hearing in Sydney. A fair reading of his Honour's reasons reveals that he saw the question as very finely balanced. The balance was clearly tipped in favour of the opponents by the finding of the substantive law to be applied. In my opinion, the discretion miscarried." Having held that his Honour's discretion miscarried, Stein JA then re-exercised the discretion of the Court, this time in favour of the respondent, on the basis of the matters referred to in this passage:

"In a product liability case in NSW the claimant would have a legitimate juridical advantage in the ability to cross-examine expert witnesses, not available under the civil law system in France or New Caledonia. Equally important is the juridical advantage of the availability of discovery, inspection and interrogatories in NSW, not available in France or New Caledonia." The appeal to this Court

Before discussing the arguments of the parties it is convenient to set out the rules applicable to this appeal:

"10.6A Setting aside service outside Australia (1) The Court may make an order of a kind referred to in Part 11 rule 8 (which relates to setting aside etc. originating process) on application by a person on whom an originating process is served outside Australia. (2) Without limiting subrule (1), the Court may make an order under this rule on the ground: (a) that the service of the originating process is not authorised by these rules; or (b) that this Court is an inappropriate forum for the trial of the proceedings. … 11.8 Setting aside originating process, etc (1) The Court may, on application made by a defendant to any originating on notice of motion filed within the time fixed by subrule (2), by order: set aside the originating process; set aside the service of the originating process on the defendant; declare that the originating process has not been duly served on the defendant; discharge any order giving leave to serve the originating process outside the State or confirming service of the originating process outside the State; discharge any order extending the validity for service of the originating process; protect or release: property seized, or threatened with seizure, in the proceedings; or property subject to an order restraining its disposition or disposal or in relation to which such an order is sought; declare that the Court has no jurisdiction over the defendant in respect of the subject matter of the proceedings; decline in its discretion to exercise its jurisdiction in the proceedings; grant such other relief as it thinks appropriate. … (3) The making of an application under subrule (1) shall not be treated as a voluntary submission to the jurisdiction of the Court." (emphasis added) The history of the Rules is traced by Kirby J in his Honour's reasons for judgment.

At the outset, it is important to notice that Pt 10 r 6A does not use the expression "clearly inappropriate", which had been used in common law cases in relation to this kind of issue, particularly those cases in which the doctrine, forum non conveniens has been invoked, an expression which the Court of Appeal, in the passage to which I have referred seemed to think governed this case. Indeed, neither at first instance nor in the Court of Appeal does any detailed consideration appear to have been given to the history of the current rules and their meaning. It should also be noted that Pt 10 r 6A commenced on 1 July 1988, that is after the hearing of argument in Oceanic Sun Line Special Shipping Company Inc v Fay and one day after the pronouncement of judgment in that case. Before the current rule was introduced, Pt 11 r 8 entitled "Setting Aside Originating Process" was in force and conferred a broad and non-specific jurisdiction upon the Court to set aside process or to discharge and grant an order for leave to serve, or confirming service of an originating process outside the state.

It is right to say, as the appellants submit, that the only error of law that the Court of Appeal held that the primary judge had made was to find, arguably wrongly, and prematurely, that French law as the substantive law to be applied, would be the law to determine the rights and obligations of the parties on trial. And it was on the basis of that finding only that the Court of Appeal decided to re-exercise its discretion.

For reasons which will appear, it is, with respect, not right to say that Smart J fell into error in deciding which law should apply, and in further deciding that matter in the way in which his Honour did. But before stating those reasons, I would emphasise that it is the language of the Rules that has to be construed and applied, and not principles of the common law, encrustations upon them or earlier Rules, not using the same language as the Rules in their current form. That does not mean that common law principles which have been developed in this area would offer no guidance in construing ambiguities (if any). Reference to those not in conflict with the Rules may also be helpful, to the extent that they may provide examples of how the discretion has been exercised when the occasion for doing so has arisen in the past.

A holding that a forum is an inappropriate forum will not necessarily resolve the issue whether a proceeding in it should be stayed, although, in many, if not most cases, it is likely to do so. The Court will still have a discretion to stay or not to stay with respect to which, without attempting to state an exhaustive list of them, such considerations as delay, the conduct of the parties, the usual domicile or residence of the parties, and various matters of convenience may be relevant.

I cannot accept, however, as the Court of Appeal did, that a judgment that a particular foreign law should be the law to determine the parties' rights and obligations is irrelevant to the question of appropriateness, particularly in a case such as this one, in which the respondent defendants are foreign corporations, they have no legal presence or address in New South Wales, and the alleged events giving rise to liability occurred out of the jurisdiction. As four Justices of this Court (Mason CJ, Deane, Dawson and Gaudron JJ) made plain in Voth:

"[I]n deciding whether it has been established that the chosen forum is clearly inappropriate, the extent to which the law of the forum is applicable in resolving the rights and liabilities of the parties is a material consideration." (emphasis added) With respect, it is difficult to see how it could be otherwise. No doubt, courts in Australia can and do regularly apply foreign law, but it would be vain to claim that they can, or would do it with the same familiarity and certainty as the courts of the jurisdiction in which it was created.

In my opinion the word "inappropriate" which appears in the relevant rule should not be burdened with the encrustations of "oppressiveness" and "vexatiousness" that have been attached to it in cases in which courts have decided an issue of forum non conveniens. The history of these encrustations and the gradual realization in the United Kingdom that a rule requiring a defendant to establish oppression or vexation in the forum legis causae was unreasonable is traced in the joint dissenting judgment of Wilson and Toohey JJ in Oceanic. There their Honours stated their conclusions in these passages with which I would respectfully agree and am free to apply here, because, neither in Oceanic nor Voth did the Court have to consider or apply the new Rule in its current form in which the use of the word "clearly" must deliberately have been omitted by the authors of the Rules, and a decision made not to use the words "oppressive" or "vexatious":

"We agree with Lord Goff's approach in Spiliada. In our view the evolution of English law since The 'Atlantic Star' cannot be ascribed to local considerations such as the incorporation of the United Kingdom into the European Economic Community. Rather, this century has witnessed such a transformation in communications and travel, coupled with a greater importance attaching to considerations of international comity as the nations of the world become more closely related to each other as to render the St Pierre principle, fashioned as it was in the nineteenth century, inappropriate to modern conditions. In this regard we agree with the views expressed by Kirby P in the Court of Appeal. The St Pierre principle places such a tight rein on the discretion of a court as to render it unable to deal justly with the problem of forum shopping, even in blatant cases … And there is force in the comment of Pryles: 'The common law jurisdictional rules [ie, the sufficiency of personal service within the jurisdiction] are not entirely satisfactory and can lead to the assumption of jurisdiction in the most tenuous circumstances where there is really no significant connection between the litigation and the forum … In these circumstances a liberal rule as to the staying of actions is required. It cuts down local parochialism as regards judicial adjudication, and is consistent with a spirit of international legal cohesion and integration.' Furthermore, in an area of the law involving the courts of other countries it is expedient to preserve as much consistency as possible between the common law countries. The doctrine of forum non conveniens has long formed part of the law of Scotland and of the United States of America. It is now the law of England. It would seem to be the law of Canada … We are unaware of any recent consideration of the question in the courts of New Zealand. In our view, the Spiliada approach should henceforth chart the course for the common law of Australia in relation to the inherent jurisdiction of a court to stay proceedings when there is a more appropriate forum in a foreign country. Likewise, we think that the reasoning of Lord Goff in Spiliada in drawing attention to a marked resemblance between the principles applicable in forum non conveniens cases and those which govern the discretionary power of a court to permit service of proceedings on a defendant outside the jurisdiction, is relevant and applicable in Australia." (footnotes omitted) In short, it seems to me with respect, that so called globalisation, the deterrence of forum shopping, comity between nations with established judicial systems (both subjects about which I will say more shortly), taken with the other factors to which their Honours referred, require that, in general, suits should not be determined in a jurisdiction which has, with respect to the relevant events, no real connexion with the defendant. The days have passed since a judge of a common law country, however eminent, could say, categorically and uncontroversially of English courts, in defence of forum shopping, as Lord Denning MR did, "[England] is a good place to shop in, both for the quality of the goods and the speed of service."

It is true that in Oceanic, Brennan J preferred the older English test which required proof by a defendant of oppression or vexatiousness because, his Honour thought, it offered a greater degree of certainty; Deane J reached a similar conclusion but did so by having regard to the interests almost exclusively of plaintiffs, whose "legitimate and substantial advantage" in the local forum should be definitive. Gaudron J, the other member of the majority, largely agreed with Deane J.

I do not think that the majority opinion in Oceanic should be applied in this case. It is not binding on me because it was not decided by reference to the Rule which falls for application here. Secondly, it is not easily reconcilable with the passage from the joint judgment in Voth that I have already quoted and which was decided a little later than Oceanic and which stressed the materiality of the applicable law to a consideration of the question whether a forum was a clearly inappropriate one. Thirdly, the word "inappropriate" must have been deliberately chosen by the rule-makers in 1988. And had they intended a test of vexatiousness or oppression then they could and should have said so. Fourthly, "inappropriate" is hardly a synonym for "vexatious" or "oppressive". Fifthly, the test adopted in the older English cases and preferred by the majority in Oceanic was seen by the English courts, and Wilson and Toohey JJ in Oceanic, to be so disconcordant with modern notions of comity that a new and fairer test should be adopted. With respect, I think this is so and should be a relevant consideration in deciding inappropriateness under the current rule. "Forum shopping" has a capacity to affect all nations, including Australia, with established and fair judicial systems. If persons injured or damaged elsewhere are free to pursue their claims in this country because they think that they will enjoy greater prospects of success here than in the jurisdiction in which the damage was inflicted, then it is only to be expected that other nations, whose curial proceedings provide more generous results for plaintiffs, whether by way of huge awards of exemplary damages or otherwise, will be receptive to forum shopping in those nations' courts by their nationals and others who have been damaged or injured in this country. The consequences in these circumstances for people and corporations in this country who have complied with all relevant laws and standards, have paid their taxes and insured against risks on the basis of the law applying where they live or operate in this country, could be grave and unpredictable and, ultimately devastating.

As I have said, I do not consider the test to be one of vexatiousness or oppressiveness. If however I am wrong about that, I am of the opinion that for the respondent to be permitted to import his cause of action into, and to pursue it in New South Wales where the appellants have no presence, with which they have no other relevant connexion, and where the respondent was not injured would be oppressive to the appellants.

Henry v Henry, in which Voth was discussed and applied, is distinguishable. It was a matrimonial case in which a party invoked the jurisdiction of the Family Court of Australia pursuant to s 39(3) of the Family Law Act 1975 (Cth), to seek to argue that he was domiciled in Australia. No rule of the kind which has to be applied here was involved. It is interesting to note, however, that the majority (Dawson, Gaudron, McHugh and Gummow JJ) said this in their joint judgment:

"[T]he question whether Australia is a clearly inappropriate forum is one that depends on the general circumstances of the case, taking into account the true nature and full extent of the issues involved." That language does not suggest that any narrow view should be taken by a court in deciding inappropriateness or otherwise that would exclude a consideration, and a finding of the law to be applied, and circumstances such as the place of the injury, the absence of the defendant from the jurisdiction, and the position of, and possible prejudice to a defendant, and any other features connecting the case to the jurisdiction in which the relevant events occurred.

There is, in a sense, a measure of potential unfairness to defendants implicit already in a rule which allows, as this one does, the initiation of proceedings locally on the basis that they are founded in part upon damage being suffered locally, as this one does. In ordinary discourse, if one were to be asked "where was the damage done?", the answer would surely be "New Caledonia", that what happened thereafter, wherever it occurred, were consequences of the traumatic event which was complete in that place: that the respondent, by suing in New South Wales seeks to import his injuries, damages and cause of action into that jurisdiction. Be that as it may, that is a result that the Rule contemplates and to which effect must be given, absent inappropriateness. It must also be appreciated that the Court is not engaged, under the Rule, in making a choice as to which forum is the more appropriate. The Rule does not, however, provide any warrant for looking to a plaintiff's interests only. Reference has been made in the cases to a plaintiff's "legitimate" juridical advantage. One person's legitimacy may, in some circumstances, be another's illegitimate disadvantage.

The law to be applied under the Rule is a matter which should be decided at the earliest possible stage of the action. How otherwise can the parties prepare for trial? Among other things, the way in which the parties may choose to avail themselves of the various interlocutory steps which they may take, is likely to be influenced by the law which is to be applied at the trial. And it is desirable that the parties not wear the costs of attempting to prove foreign law unless it is clear that it will be necessary for them to do so.

Every rational consideration points in my opinion to French law as the law to be applied in this case: the vehicle was a French vehicle; the injury was sustained in a "French place", the vehicle was hired in that place, and the terms and conditions of the hire of the vehicle would be governed by the law of that place. The "wrong", if any, had no relevant connexion with New South Wales.

It follows that Smart J was not in error in having regard to, and making a finding as to the application of French law for the purposes of deciding whether the Supreme Court of New South Wales was an inappropriate forum.

I have said that in making such a decision matters referred to in the cases at common law may be relevant, particularly by way of informing the exercise of a judicial discretion when the foundation for its exercise has been laid. Any cases that could have a relevance to the discretion were carefully considered by Smart J when his Honour came to exercise his discretion. His Honour, to use the language of the joint judgment in Henry, did have regard to the general circumstances of the case and the full extent and nature of the issues involved. The Court of Appeal accepted that all of the matters to which Smart J referred were relevant.

Stein JA did, however, give a different emphasis to some of the matters to which Smart J referred. In so doing, that is in effectively reviewing an exercise of a discretion, the Court of Appeal again fell into error. Stein JA was also perhaps too categorical in saying that the primary judge "conclud[ed] that the practical considerations favoured New South Wales". Smart J was somewhat more tentative than that, and, it may be seen, anxiously weighed the competing considerations:

"Overall the practical considerations tend to favour a hearing in Sydney but if the case were to be determined by a French or New Caledonian Court mainly on documentary materials this would not preclude a fair hearing. The problem would lie in obtaining adequate legal representation in a difficult case. To the extent that it was needed, an enquiry as to damages would take place in New South Wales. This is a case where it would be appropriate for a Court to determine liability first and subsequently deal with the assessment of damages if that arises."

The question of inappropriateness in this context will always involve the weighing of considerations of the kind to which his Honour referred.

I have already stated my view that it is erroneous to give, as the Court of Appeal did, undue weight to a perception of advantage to the respondent by allowing the proceedings in New South Wales to continue, rather than to assess the advantages and disadvantages accruing to both sides in each jurisdiction in considering whether New South Wales was an inappropriate one. Stein JA said this:

"In a product liability case in NSW the claimant would have a legitimate juridical advantage in the ability to cross-examine expert witnesses, not available under the civil law system in France or New Caledonia. Equally important is the juridical advantage of the availability of discovery, inspection and interrogatories in NSW, not available in France or New Caledonia." In Agar v Hyde I expressed reservations about a disposition on the part of the Court of Appeal there to find in favour of a plaintiff on a not dissimilar application because, in New South Wales, the provisions for allowing extensions of periods of limitation were more generous than in the competing jurisdictions. In any event, no matter what opinion a judge may hold as to a superiority, actual or not, of our system of law over that of another jurisdiction, it will often be presumptuous and sometimes impossible to demonstrate that a superiority in fact exists, or that, having regard to all aspects of the foreign law in question, it is incapable of achieving a just result. Indeed, the relevant provision of the French law likely to govern this case would appear to operate no less generously to a plaintiff on the issue of liability than Australian law.

The reasoning of the Court of Appeal on the discretionary issue suffers from the further defect that it looks to some aspects of French procedural law only. It overlooks that French law charges French courts with the obligation of discovering the truth, and confers on them interventionist powers of a kind not generally available to judges in common law jurisdictions. It should not be too readily assumed that the exercise of these powers would result in unfairness to either side.

Stein JA took a different view of the relevance and significance of the disparity in resources between the parties from that of Smart J. This was a matter of relevance, but it is important that its relevance not be overstated. It was, however, given the fullest and most careful consideration by his Honour at first instance. The latter's view on it accorded with what Lord Goff of Chieveley said in Connelly v RTZ Corp:

"I therefore start from the position that, at least as a general rule, the court will not refuse to grant a stay simply because the plaintiff has shown that no financial assistance, for example in the form of legal aid, will be available to him in the appropriate forum, whereas such financial assistance will be available to him in England. Many smaller jurisdictions cannot afford a system of legal aid. Suppose that the plaintiff has been injured in a motor accident in such a country, and succeeds in establishing English jurisdiction on the defendant by service on him in this country where the plaintiff is eligible for legal aid, I cannot think that the absence of legal aid in the appropriate jurisdiction would of itself justify the refusal of a stay on the ground of forum non conveniens. In this connection it should not be forgotten that financial assistance for litigation is not necessarily regarded as essential, even in sophisticated legal systems. It was not widely available in this country until 1949; and even since that date it has been only available for persons with limited means. People above that limit may well lack the means to litigate, which provides one reason for the recent legalisation of conditional fee agreements." The opinion of Smart J was in conformity with some observations of Lord Hoffmann (dissenting, but for other reasons) in Connelly:

"But I do not think that the refusal a stay on this ground can be based upon any defensible principle. It means that the action of a rich plaintiff will be stayed while the action of a poor plaintiff in respect of precisely the same transaction will not. It means that the more speculative and difficult the action, the more likely it is to be allowed to proceed in this country with the support of public funds. Such distinctions will do the law no credit. For my part, I prefer the eminently rational principle stated by Sopinka J in Amchem Products Inc v (British Columbia) Workers' Compensation Board: 'The weight to be given to juridical advantage is very much a function of the parties' connection to the particular jurisdiction in question. If a party seeks out a jurisdiction simply to gain a juridical advantage rather than by reason of a real and substantial connection of the case to the jurisdiction, that is ordinarily condemned as "forum shopping". On the other hand, a party whose case has a real and substantial connection with a forum has a legitimate claim to the advantages that that forum provides. The legitimacy of this claim is based on a reasonable expectation that in the event of litigation arising out of the transaction in question, those advantages will be available.'" I would also regard one other of the reasons of Stein JA as erroneous in two respects: that the respondent "had only a transitory and accidental connection" with New Caledonia. First, the fact that the respondent was in New Caledonia, and that he suffered injury there in an accident in respect of which some of its residents will be important witnesses, does give the respondent more than an accidental connexion with New Caledonia. Secondly, his Honour's statement discloses an erroneous approach to the relevant issues by looking exclusively to the respondent's position and to the proposed alternative forum, rather than to the position of the parties on both sides of the record and the appellants' connexion or otherwise with New South Wales. As to the latter, the appellants have no connexion. That others choose to import and sell their cars in that State is of no relevance. It is not established that the cars sold in New South Wales are the same as those distributed where the respondent was injured. Indeed, as different countries frequently have different standards of design and safety, there must be a real prospect that a Renault vehicle sold in Australia would differ from a Renault vehicle sold in another country. So, too, different countries may impose different standards of manufacture and the compulsory change-over of vehicles once they reach a certain age. These are matters going beyond a search for and application of the law to govern this case if it were to be litigated in New South Wales. That such differences are likely to exist highlights the need to look to the appellants' as well as the respondent's position.

To say, as his Honour did, that he was "unable to see how New Caledonia can be seen as an appropriate forum" was also erroneous. The sorts of matters to which I have referred make New Caledonia an entirely appropriate forum. Finally, in saying as his Honour did, that "[I]t ought not be concluded that NSW is a clearly inappropriate forum", Stein JA did not apply the less emphatic test for which the Rules now make provision. (emphasis added)

It is unnecessary to have regard to policy considerations to decide this appeal. Often, as I have elsewhere pointed out, there are policy considerations pointing in different directions. But it does seem to me that there are some of relevance here suggestive of the inappropriateness of the domestic forum. People today travel much more extensively than in the past. They are much better informed about distant, as well as near places, than was the case in the past. People who travel to different jurisdictions would understand that those jurisdictions have different systems of law, taxation and social security from ours. In principle, they should also be aware that in travel and in some places, they may encounter more and different hazards from those they may ordinarily meet in their own countries. They should also appreciate that, in distant places and in unfamiliar circumstances they may be more vulnerable than they are at home. There is little reason to distinguish the civil from the criminal law. Travellers and residents in, and visitors to other jurisdictions know that they are bound by the criminal law of those jurisdictions which, if they break it, will make them answerable in the courts of those jurisdictions. It is by no means unreasonable or inappropriate that they should also be bound by the civil law of, and the remedies provided by, and to be pursued in, the courts of the jurisdictions in which they have suffered injuries. Travellers generally can and should obtain insurance to protect themselves against the consequences of accidents in voyage and against the hazards of other places.

The appellant submitted that the holding of the majority in John Pfeiffer Pty Ltd v Rogerson that the lex delicti should govern all questions of substance to be determined by all Australian courts in cases of torts committed in Australia, should be applied equally in respect of acts or omissions committed outside Australia, and that the double actionability rule in Phillips v Eyre should be overruled. Whether the principle should be taken to be as stated in Phillips v Eyre or in terms of the modification formulated by Brennan J in Breavington v Godleman, does not matter in this case because the conditions for its application on either view are satisfied here: the respondent would have a cause of action, on the facts pleaded in New South Wales and in New Caledonia, and the defendant's conduct was not therefore justifiable in that latter place. In Voth, which raised the same question as here, but which fell to be considered in relation to events occurring before the commencement of the current Rules, Mason CJ, Deane, Dawson and Gaudron JJ said this of Phillips v Eyre:

"The act of the appellant giving the respondents their cause of complaint was committed in Missouri and thus the tort, if there was one, was committed in Missouri. Accordingly, even if the matter were to be litigated in this country, the appellant is liable to the respondents only if he is liable under the law of Missouri: see Phillips v Eyre, where it is said that 'the civil liability arising out of a wrong derives its birth from the law of the place, and its character is determined by that law'. The precise role of local law under the double actionability rule laid down in Phillips v Eyre need not be explored, but it has no direct bearing on the question whether the act of which the respondents complain was wrong for that must depend on Missouri law. The question whether it would have been wrong if committed in Australia, as is asked under the double actionability rule, merely brings local law to bear on that question hypothetically. Even though Australian revenue law features significantly in the respondents' damages claim, it is merely a circumstance bearing on the question whether damage was suffered and, if so, its quantum. It does not, in any relevant sense, determine the liability of the appellant for that damage or the quantum of recoverable damage. The proceedings have been conducted on the basis that the law of the place where the tort was committed has a significant bearing upon the determination of the dispute between the parties. In the light of what has been said it is more accurate to say that it is fundamental." Their Honours did not express any opinion as to the continued binding effect of Phillips v Eyre or the impact that their decision and reasons might have on that case or any particular aspect of it.

I do not propose, therefore, to say anything about the application (subject to a flexible exception or otherwise) of Pfeiffer to foreign wrongs, the subject of proceedings to be litigated to finality in this country, or about the extent of the application, or continued application of Phillips v Eyre to such proceedings. The conclusions of the majority in Pfeiffer, do however seem to me, with respect, to depend very much upon the nature of the federal structure of this country and its courts, and the respect owed by its component states and their courts to one another, as well as the desirability that there be one common law for the whole of the nation, features which are self-evidently not present in international situations.

The respondent has filed a notice of contention. Only one of the matters it raises needs any separate consideration. In par 7 of it, the respondent submits that the primary judge erred in concluding that the conditions included in his orders would be effective to remove unfairness to the plaintiff as a result of the advantages he would lose, and the disadvantages he would suffer if he were required to litigate in France or New Caledonia. The contention overlooks the primary judge's specific and careful consideration of this matter.

I would allow the appeal and order that the judgment of Smart J be restored. The appellants' grant of special leave was conditional upon, first, their agreement that the order for costs in the New South Wales Court of Appeal not be disturbed and, secondly, their paying the respondent's costs in this Court which I would order accordingly.