Zhang v Regie Nationale des Usines Renault SA & Anor

Court of Appeal (NSW)|2000-04-28|Before: Beazley JA, Stein JA, Giles JA, Smart J

CITATION : Zhang v Regie Nationale des Usines Renault SA & Anor [2000] NSWCA 188 FILE NUMBER(S) : CA 40896/98 HEARING DATE(S) : 28 April 2000 JUDGMENT DATE : 27 July 2000

Fuzu Zhang (Claimant) PARTIES : Regie Nationale des Usines Renault SA (First Opponent) Renault Automobiles SA (Second Opponent) JUDGMENT OF : Beazley JA at 1; Stein JA at 2; Giles JA at 54

LOWER COURT JURISDICTION : Supreme Court - Common Law Division LOWER COURT CLD 20016/94 FILE NUMBER(S) : LOWER COURT Smart J JUDICIAL OFFICER :

COUNSEL : R F Margo (Claimant) R A Conti QC/A S Bell (First and Second Opponents) SOLICITORS : T D Kelly & Co (Claimant) Connery & Partners, Solicitors (First and Second Opponents) CATCHWORDS : PRIVATE INTERNATIONAL LAW - tort - clearly inappropriate forum - choice of law - lex loci delicti - lexi fori - double actionability rule - D Breavington v Godleman (1988) 169 CLR 41 C E Heath Underwriting & Insurance (Australia) Pty Ltd v Barden (Supreme Court, 19 October 1994, unreproted) David Syme & Co Ltd v Grey (1992) 38 FCR 303 Gardner v Wallace (1995) 184 CLR 95 Henry v Henry (1996) 185 CLR 571 James Hardie & Co Pty Ltd v Hall (1998) 43 NSWLR 554 James Hardie Industries Pty Ltd v Grigor (1998) 45 NSWLR 20 John Pfeiffer Pty Limited v Rogerson [2000] HCA 36 Kolsky v Mayne Nickless (1970) 72 SR (NSW) 437 Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188 CASES CITED: Mason v Murray's Charter Coaches and Travel Services Pty Ltd (1999) 159 ALR 45 McKain v R W Miller & Co (South Australia) Pty Ltd (1991) 174 CLR 1 Nalpantidis v Stark (1995) 65 SASR 454 Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 Phillips v Eyre (1870) LR 6 QB 1 Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460 Stevens v Head (1993) 176 CLR 433 Thompson v Hill (1995) 38 NSWLR 714 Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 Walker v W A Pickles Pty Ltd [1980] 2 NSWLR 281 W F Motors Pty Ltd v Maydwell (Supreme Court, 23 April 1993, unreported) Wilson v Nattrass (1995) 21 MVR 41 DECISION : See paragraph 53

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40896/98 CL 20016/94 BEAZLEY JA STEIN JA GILES JA Thursday, 27 July 2000 Fuzu ZHANG v REGIE NATIONALE DES USINES RENAULT SA and RENAULT AUTOMOBILES SA The claimant, a New South Wales resident, suffered serious injuries in New Caledonia when he lost control of a Renault hire car he was driving. He brought an action framed in product liability in the Supreme Court of New South Wales against the opponents, two Renault companies being foreign companies.

The claimant applies for leave to appeal against the decision of Smart J to grant a stay of the New South Wales action. If leave is granted, the parties were agreeable to the Court proceeding to hear the appeal. The claimant submits that in deciding that New South Wales is a clearly inappropriate forum in which to try the claimant's action his Honour's exercise of discretion miscarried by a misapplication of principle.

The claimant submits that his Honour applied the test of a more or the most appropriate forum, rather than the correct test, found in Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538, of a clearly inappropriate forum.

Smart J found that the practical considerations tended to favour News South Wales but that a stay should be granted on conditions. It is maintained that his Honour fell into error by attaching too much importance to the assumption that French law would be the substantive law to be adopted. Held (Stein JA, Beazley and Giles JJA agreeing): The lex loci delicti does not have a role to play after it has been used to determine the question of justiciability under the second part of the rule in McKain v R W Miller & Co (South Australia) Pty Ltd (1991) 174 CLR 1. The substantive law to be applied is the law of the forum; Thompson v Hill (1995) 38 NSWLR 714 applied.

The discretion miscarried and it is appropriate to re-exercise it. Smart J should have held that the opponents had not discharged the onus of showing that New South Wales was a clearly inappropriate forum and refused the stay. ORDERS

Leave to appeal granted.

Set aside the judgment at first instance save the staying of the claimant's claim in quasi contract, which was made by consent.
The stay sought by the opponents in the Summons before Smart J dismissed with costs. oOo

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40896/98 CL 20016/94 BEAZLEY JA STEIN JA GILES JA Thursday, 27 July 2000 Fuzu ZHANG v REGIE NATIONALE DES USINES RENAULT SA and RENAULT AUTOMOBILES SA JUDGMENT 1 BEAZLEY JA: I agree with Stein JA. 2 STEIN JA: Introduction 3 The issue before Smart J, the subject of the application for leave to appeal before the Court, is whether the Supreme Court of New South Wales is a clearly inappropriate forum in which to try the claimant's action against the opponents. The opponents had sought a stay of the New South Wales action brought by the claimant. On 16 October 1998 his Honour granted a stay subject to certain conditions. His Honour's decision involved the exercise of discretion which the claimant submits miscarried by a misapplication of principle. 4 The parties agree that the application for leave and the appeal (if leave is granted) should proceed at the same time.

Facts 5 The relevant facts may be briefly stated. The claimant, Mr Zhang, suffered serious injuries on 6 February 1991 at Poindimie in New Caledonia when he lost control of a Renault hire car which he was driving. It is convenient to adopt the facts found by Smart J. His Honour said: The sedan travelled across the roadway, hit a 40 cm high earth embankment, somersaulted a couple of times, stopped on its roof, rolled over again and slid down a 30 metre high ravine towards the sea, coming to a standstill at the bottom of the ravine. The roof of the car was crushed into the passenger compartment. The police investigation found that the Renault sedan was travelling at an excessive speed. There is evidence that the plaintiff ignored the speed signs and the signalling of roadworkers to slow down. One roadworker said that the Renault 19 skidded in the first bend and that he made vigorous signals to the driver to slow down. [at 1] 6 The opponents are two foreign corporations, Regie Nationale des Usines Renault SA and Renault Automobiles SA. For convenience his Honour referred to them as the Renault companies and I will do the same. 7 Although Renault had a previous presence in Australia, it appears that since some time in 1991 it no longer has any presence in New South Wales, apart from owning the Renault trade mark. (The distribution of Renault cars in Australia was apparently taken over by Volvo). 8 The claimant travelled to New Caledonia from Sydney in order to apply for permanent residency in Australia. This was subsequently granted and later he became an Australian citizen. While in Noumea, he hired a Renault motor vehicle from a car rental company. The claimant says that he hired a Renault sedan because he had previously driven them in Sydney and had acquired some knowledge of Renault motor vehicles. 9 As a result of the accident the claimant suffered a complete loss of motor power and sensation below T5 spinal level and will remain permanently paraplegic. It is common ground that he had suffered and continues to suffer damage in New South Wales, thus invoking Supreme Court Rules Part 10 rule 1A(e).

The claimant's case 10 The claimant's case against the Renault companies is framed in product liability. He maintains that Renault knew or ought to have known that its vehicles might be involved in accidents in which they might roll over. In that event, the likelihood of the roof crushing into the passenger compartment could be substantially reduced or eliminated if the roof and its structure were of sufficient strength. The claimant's case was that the Renault companies were negligent in designing and manufacturing a vehicle which was defective. The defect was in the pillars and associated supports of the roof. They were of insufficient strength to prevent or substantially reduce crushing into the passenger compartment in an accident involving the car rolling over, as here occurred. 11 The claimant also relies on the opponents' failure to warn him in New South Wales of the risk of roof crush if the vehicle rolled over. His Honour did not accept that there was any relevant failure to warn in New South Wales. I think that Smart J was correct to put this allegation aside for the reasons he gave. 12 The design and manufacture of the vehicle in question occurred in France. Accordingly, the alleged tort occurred in France. The consequential injury was suffered in New Caledonia. At the relevant time it appears that there was no French or European standard for roof strength. The opponents maintain that they used a US standard. The adequacy of the US standard will be in question in the proceedings. 13 The claimant's three engineering experts in Australia maintain 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. [Smart J at 5]

The first instance judgment 14 Smart J considered the 'practical considerations' of the trial venue. He noted that the claimant, his wife and son, his expert engineering witnesses, medical witnesses and other witnesses on assessment of damage, all resided in Australia. Expert witnesses for the opponents were likely to come from Europe or the United States. The witnesses to the accident, including before and after, would be important. Four reside in New Caledonia and one in France. While it might be possible to take their evidence on commission, they could not be compelled to attend in Sydney. 15 His Honour noted that the absence of discovery and interrogatories under French law placed the claimant at a disadvantage. Referring to the modest means of the claimant, his Honour noted that without solicitor and counsel acting for him on the basis of contingency fees, he could not afford to meet the costs of the action in New South Wales. Smart J added: It is doubtful, to say the least, if he, a foreign national, could secure quality and experienced representation in New Caledonia or France in a case which has difficulties unless he made some payments. [at 9] 16 His Honour found that the litigation was likely to be expensive and the opponents had far greater resources than the claimant. They could afford to bring witnesses to Sydney and arrange for adequate legal representation and obtain a fair hearing. On the other hand, the claimant could not afford to pay for his witnesses to go to Noumea, New Caledonia. 17 As against these considerations his Honour noted that if the action was heard in France or New Caledonia on documentary materials, without oral examination, the cost would be greatly reduced. A court expert could be appointed to take evidence in Sydney. This aside, there was still the 'difficult question' of the claimant obtaining legal representation in France or New Caledonia. The opponents would still, according to his Honour, have a significant advantage. 18 The expert debate was likely to take the most time and was of general importance. The claimant's driving at the time of the accident was also an important issue. 19 The languages of the witnesses was not seen as important because of the availability of interpreters. 20 His Honour stated that '[O]verall the practical considerations tend to favour a hearing in Sydney' but added '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'. Nonetheless, there was, according to Smart J, still a problem for the claimant in obtaining adequate legal representation. 21 Having referred to Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 and other authorities, Smart J concluded that: This case has a close connection with France and New Caledonia. The design and manufacture of the sedan took place in France. If it were not for the accident in New Caledonia and the injuries suffered there by the plaintiff this claim would not arise. The New South Wales connection is of a different order. This is where his home is situated and where he has continued to suffer damage as a result of the accident and his initial injuries. That is a factor of relatively little weight ( Voth at 571). The system of law with which the plaintiff's cause of action has the closest and most real connection is that of France. Both defendants are French companies and do not carry on business in Australia. A stay is not refused simply because a plaintiff can point to some connections with the local forum: see per Mason P in Grigor , supra at p 2 of his judgment. In Voth at 571 the High Court held that the overall task of the court is to exercise its discretion "based upon the competing connections of the respective forums with the subject matter of the proceedings." [at 12] 22 His Honour then said that '[t]he substantive law to be applied is French law. On any reasonable view, the tort alleged, whether negligent design or manufacture, is French'. He said that the absence of legal aid would not of itself justify the refusal of a stay on the ground of forum non conveniens. He continued: 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. [at 16] 23 Nevertheless, the troubling aspect for his Honour was the claimant's lack of funds to obtain justice. He said that the case was 'very difficult' but ultimately determined that a stay should be granted on conditions. These conditions were: (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. [at 17] 24 According to his Honour, condition (d) was designed to ensure that the claimant was not excluded from obtaining justice because of his lack of means.

The claimant's submissions 25 It is the submission of the claimant that although his Honour referred to Voth, he did not apply it correctly when exercising his discretion. Rather, it is contended that he applied a test of a more or the most appropriate forum (Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460). 26 The correct principles to apply, so it is submitted by the claimant, are as follows:

(a) The claimant has a prima facie right to have his claim heard in New South Wales and this ought not be lightly displaced or denied, Deane J in Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 at 241 and 243.

(b) As a corollary, the power to grant a stay must be exercised with 'great care' and 'extreme caution', Oceanic at 247 - 248 and Voth at 554.

(c) A stay should not be granted unless New South Wales is shown to be a clearly inappropriate forum, and the onus to show this is on the opponents, Oceanic at 247 - 248, Voth at 564 - 565.

(d) Even if another forum was more appropriate, this would not, of itself, be a sufficient ground for a stay, Oceanic at 248 and Voth at 570.

(e) A local court would be a clearly inappropriate forum if the proceedings would be oppressive in the sense of seriously and unfairly burdensome, prejudicial and damaging, Oceanic at 247 and Voth at 564.

(f) Notwithstanding that the Australian test is not the same as in English law, the factors referred to by Lord Goff in Spiliada provide valuable assistance, Voth at 565. Discussion 27 It is convenient at once to dispose of one of the claimant's submissions. In the opening paragraph to his reasons for judgment Smart J referred to the issue as whether New South Wales was an 'inappropriate forum'. He did not use the phrase 'clearly inappropriate forum'. I do not read anything into this. His Honour could well have been referring to Part 10 rule 6A(2)(b) and, later in his judgment it is obvious that his Honour was well acquainted with the common law test. I am satisfied that Smart J was aware of the impact of the adjective 'clearly', and it has been held that the rule does not relax the common law test. See for example W F Motors Pty Ltd v Maydwell (Supreme Court, 23 April 1993, unreported) and C E Heath Underwriting & Insurance (Australia) Pty Ltd v Barden (Supreme Court, 19 October 1994, unreported). 28 The claimant submits that Smart J did not apply the correct test in Voth (at 571) but something more akin to Spiliada, see Mason P in James Hardie Industries Pty Ltd v Grigor (1998) 45 NSWLR 20 at 41 for a discussion of the differences. Essentially the discretion exercised by Smart J is said to have miscarried by his Honour concluding that a stay should be granted to the opponents, having found that the practical considerations tended to favour New South Wales. In particular, it is maintained that his Honour fell into error by attaching too much importance to the assumption that French law would be the substantive law to be applied. This finding, so it seems, outweighed the practical considerations which were found to favour New South Wales. Indeed, it appears to me to have been decisive in the exercise of the discretion, the discretion being otherwise finely balanced. 29 The claimant further submits that it was an error to positively find that the substantive law to be applied by the New South Wales Court would be French law. The claimant submits that the lex loci delicti does not have any role to play after it has been used to determine the question of justiciability under the second part of the rule in Phillips v Eyre (1870) LR 6 QB 1. Although acknowledging the differences of judicial opinion which exist, Mr Margo, on behalf of the claimant, relies on the analysis of Clarke JA (Kirby P agreeing) in Thompson v Hill (1995) 38 NSWLR 714. 30 Clarke JA (at 734) noted that if a plaintiff sues in a New South Wales court to recover damages for a tort committed outside the State, three questions may arise. These are: 1. Does the New South Wales Court have jurisdiction? This is not in dispute in the subject case. 2. Are the proceedings justiciable in a New South Wales Court? This involves the application of the common law principles of conflict of laws applying in New South Wales. 3. If there is jurisdiction and justiciability in New South Wales, what law should it apply? 31 His Honour noted that the question of justiciability is often described as the 'threshold question'. The distinction between justiciability and the last question of what law is to be applied, is significant. Clarke JA referred to the discussion of the distinction in Breavington v Godleman (1988) 169 CLR 41 by Mason CJ and Brennan J. The threshold view of justiciability had been adopted by this Court in Kolsky v Mayne Nickless Ltd (1970) 72 SR (NSW) 437 at 444 and also Walker v W A Pickles Pty Ltd [1980] 2 NSWLR 281 at 289. 32 Clarke JA concluded that no decision of the High Court doubted the correctness of the rule. It followed that once the threshold question had been answered, the law of the lex loci delicti ceased to have relevance. 33 His Honour examined McKain v R W Miller & Co (South Australia) Pty Ltd (1991) 174 CLR 1 wherein the majority found that the plaintiff may sue in the forum with respect to a wrong occurring outside the forum if (a) a cause of action would have arisen entitling the plaintiff to enforce against the defendant a civil liability of the kind which the plaintiff claims to enforce; and (b) by the law of the place in which the wrong occurred, the occurrence gave rise to civil liability of the kind which the plaintiff seeks to enforce. See also Stevens v Head (1993) 176 CLR 433. 34 Of McKain Clarke JA said (at 740 - 741): Earlier I referred to the question whether the substantive law of the place of the tort is imported into the law of the forum solely for the purposes of the second rule in McKain or whether it is imported for all purposes. The question arises in this case because of the form of the questions submitted. I earlier indicated that prior to Breavington the weight of authority supported the view that the substantive law of the place of the tort was imported only for the more limited purpose. In Breavington , Mason CJ accorded primacy in all respects to the substantive law of the place of the tort and, obviously, that view involved the importation of the law of the place of the tort into the forum for the determination of the issues which arose there. His opinion on the question with which I am now dealing was supported by Brennan J who said (at 110): "The two conditions are not merely the criteria of the forum's jurisdiction; they state the substantive law which governs a plaintiff's right to recover a judgment in respect of an extra-territorial wrong." This view was not, however, shared by Dawson J and Toohey J: see at 142-143, 145 and 160-161. Because, however, there was not a clear majority in favour of the application of the Phillips v Eyre rule it seems to me that Breavington can not be considered to have over-ruled the principle supported by the balance of authority. McKain stands in a different situation for there was in that case a clear majority in favour of the modified Phillips v Eyre rule but on the question I am considering there was no express statement of opinion. That is, perhaps, not surprising for there had previously been divided views among the majority on the question. On the other hand the discussion concerning the concession, to which I earlier made reference, evidences the judges' concentration on the second limb of the Phillips v Eyre rule. 35 Clarke JA noted that it had not been suggested by the majority in McKain or Stevens that the earlier view concerning the limited effect of the substantive law of the place of the tort was wrong. Clarke JA accordingly saw no justification to depart from Walker v W A Pickles and Kolsky and held that the substantive law of the place of the tort is only relevant for the purposes of the second limb of the rule in McKain. 36 Support for Clarke JA's approach is to be found in Nalpantidis v Stark (1995) 65 SASR 454, although the Victorian Court of Appeal differed in Wilson v Nattrass (1995) 21 MVR 41. 37 In James Hardie & Co Pty Ltd v Hall (Putt) (1998) 43 NSWLR 554, this Court referred to Thompson v Hill uncritically, see Sheller JA at 577 - 579, although without express reference to the present question. Thompson v Hill does not appear to have been drawn to the Court's attention in Grigor although the Court found that it was not satisfied that New South Wales was a clearly inappropriate forum. 38 I find Clarke JA's reasoning in Thompson v Hill to be most persuasive. Kirby P agreed with his Honour's proposed answers to the questions (at 731). It built on Kolsky and Walker v W A Pickles, which have not been overruled. It has not been contradicted by any High Court decision. In an illuminating analysis of the case law, Clarke JA's reasoning in Thompson v Hill is supported by Sackville J in Mason v Murray's Charter Coaches and Travel Services Pty Ltd (1999) 159 ALR 45 (see also Higgins J). Thompson v Hill also derives support from Hunt J in Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188 at 190 and Dawson J in Gardner v Wallace (1995) 184 CLR 95. See also Gummow J in David Syme & Co Ltd v Grey (1992) 38 FCR 303 at 324.9. For an academic discussion of the issues see M Davies, 'Exactly what is the Australian Choice of Law in Torts cases?' (1996) 70 ALJ 711; S Dutson, 'Choice of Law in Tort in Domestic and International Litigation' (1998) 26 ABLR 238; F K Juenger, 'Tort Choice of Law in a Federal System' (1997) 19 SydLR 529. 39 Mr Margo submits that it is fairly arguable that the substantive law to be applied at the hearing will be New South Wales law. Smart J did not need to determine that question on the stay application and should have left it to the trial judge. It is maintained that his Honour's assumption to the contrary, and his giving it such great weight, caused the discretion to miscarry. In this respect, reliance is placed on Gaudron J's statement in Oceanic (at 266) to the effect that if it is fairly arguable that the substantive law of the forum is applicable, then the selected forum should not be seen as an inappropriate one. In any event, the quantum of the claimant's damages would be determined in accordance with the law of the forum. Even if the hearing were to take place in France or New Caledonia, it is possible that an inquiry into damages might take place in New South Wales. 40 It is clear that the opponents did not suggest to Smart J that the tort of negligent design and manufacture was not justiciable in New South Wales or that both limbs of Phillips v Eyre, as restated in McKain, were not satisfied. Accordingly, it was unnecessary to apply French law to arrive at justiciability and his Honour can not have been referring to that when he said that the substantive law to be applied was French law. Applying Thompson v Hill and earlier authorities in the Court, Smart J should not have taken into account in the exercise of the discretion that a New South Wales court would apply French law as the substantive law to determine the issue of liability. 41 It is not my understanding of Voth that it held that the lex loci delicti will be applied by the local court as the substantive law for the determination of liability of a foreign tort. Indeed, the majority said (at 569) that the precise role of local law under the double actionability rule in Phillips v Eyre did not need to be explored. 42 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. 43 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.

Re-exercise of the discretion 44 Accordingly, it is appropriate to re-exercise the discretion. His Honour was right to conclude that the practical considerations favoured New South Wales. All of the claimant's witnesses reside here. There are up to four witnesses in New Caledonia, which is much closer to Sydney than France. Their evidence could be taken on commission or by video link. The police officer is now resident in France. It is unclear whether his evidence is necessary. The expert witnesses for the opponents are likely to be from Europe or the United States, but given the resources of the opponents, this does not weigh heavily in the balance. By comparison, the claimant has no means to pay the costs of witnesses going to France or New Caledonia. 45 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. 46 The claimant's modest resources mean that he cannot afford to pursue his action in NSW except on a contingency fee basis. He would, according to his Honour, be unlikely to secure quality and experienced legal representation in France or New Caledonia because of his means. Smart J acknowledged that this would give the opponents a significant advantage. 47 It may be pointed out that neither party has any particular connection with New Caledonia. The claimant had only a transitory and accidental connection. The alleged tort did not occur there. Except as some sort of geographic compromise, I am unable to see how New Caledonia can be seen as an appropriate forum. 48 It has not been demonstrated that a trial in NSW would be oppressive in the sense of 'seriously and unfairly burdensome, prejudicial or damaging', or vexatious to the opponents (Henry v Henry (1996) 185 CLR 571 at 587). I do not see how the opponents would not obtain a fair trial here. It ought not be concluded that NSW is a clearly inappropriate forum. 49 In my opinion, Smart J should have held that the opponents had not discharged the onus of showing that New South Wales was a clearly inappropriate forum and refused the stay.

Postscript Pfeiffer 50 After judgment in this matter was reserved the High Court delivered its decision in John Pfeiffer Pty Limited v Rogerson [2000] HCA 36 (21 June 2000). With leave the parties made supplementary written submissions. 51 Pfeiffer establishes that the lex loci delicti, rather than the law of the forum, is the governing law with respect to torts committed in Australia but which have an interstate element (intranational torts). The High Court has developed the common law by reference to the Constitution (s 118 and Chapter III) to take account of the fact of federal jurisdiction and the nature of the Australian federation. The joint judgment expressly limits its discussion to issues arising in respect of intranational and not international torts, see paras 2 and 102. See also Kirby J at 153. 52 Counsel for the opponents submit that Pfeiffer provides powerful reasoning for the lex loci delicti as the choice of law in international torts, and that McKain and Stevens are no longer good law in Australia. The claimant however rightly indicates that, along with the double actionability rule, those cases presently continue to be relevant for international torts. Orders 53 Leave to appeal should be granted and the appeal allowed with costs. It is appropriate to set aside the judgment at first instance save the staying of the claimant's claim in quasi contract, which was made by consent. The stay sought by the opponents in the Summons before Smart J should be dismissed with costs. 54 GILES JA: I agree with Stein JA.

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