Neilson v Overseas Projects Corporation of Victoria Ltd [2005] HCA 54

Neilson v Overseas Projects Corporation of Victoria Ltd [2005] HCA 54

When an Australian court is required to determine a foreign tort claim, it must apply the whole of the law of the place where the tort was committed, including any choice of law rules of that country. Where, as under Chinese law (Article 146), the foreign law provides that the law of the parties' common domicile or nationality may be applied to a foreign tort claim, and on the evidence the discretion would be exercised in favour of applying Australian law, then Australian domestic law (including its limitation periods) is to be applied. Thus, the appellant's claim was not statute-barred and the orders of the Full Court setting aside the trial judgment were to be reversed.

Parties
Appellant: Barbara Mary Josephine Neilson; First Respondent: Overseas Projects Corporation of Victoria Ltd; Second Respondent: Mercantile Mutual Insurance (Australia) Ltd
Jurisdiction
Australia
Judgment Date
29 September 2005
Procedural Posture
Appeal / Appeal to High Court of Australia From the Supreme Court of Western Australia (full Court)
Outcome
Appeal allowed with costs (by majority).
Legal Topics
Foreign Torts, Choice of Law, Renvoi, Limitation Periods, Proof of Foreign Law, Occupiers' Liability, Personal Injury
Private International Law Tort Law Foreign Torts Choice of Law Renvoi Limitation Periods Proof of Foreign Law Occupiers' Liability +1 more

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Parties

Barbara Mary Josephine Neilson

Appellant

Overseas Projects Corporation of Victoria Ltd

First Respondent

Mercantile Mutual Insurance (Australia) Ltd

Second Respondent

Procedural Posture

Appeal / Appeal to High Court of Australia From the Supreme Court of Western Australia (full Court)

Legal Issues

  1. 1 Whether Article 146 of the General Principles of Civil Law of the PRC forms part of the lex loci delicti and is to be applied by an Australian court in a foreign tort claim.
  2. 2 Whether reference in Chinese law to the law of the parties' domicile/nationality engages the doctrine of renvoi and, if so, how Australian conflict of law rules respond.
  3. 3 Whether the doctrine of renvoi applies in international tort claims in Australia.

Ratio Decidendi

When an Australian court is required to determine a foreign tort claim, it must apply the whole of the law of the place where the tort was committed, including any choice of law rules of that country. Where, as under Chinese law (Article 146), the foreign law provides that the law of the parties' common domicile or nationality may be applied to a foreign tort claim, and on the evidence the discretion would be exercised in favour of applying Australian law, then Australian domestic law (including its limitation periods) is to be applied. Thus, the appellant's claim was not statute-barred and the orders of the Full Court setting aside the trial judgment were to be reversed.

Court Disposition

Appeal allowed with costs (by majority).

Orders

  • Set aside orders of the Full Court of the Supreme Court of Western Australia made on 3 May 2004 that set aside: (a) the judgment entered at trial in favour of the plaintiff; and (b) the order made at trial for her costs.
  • Order that the appeal to the Full Court against the judgment and order at trial be dismissed with costs.