Regie National Des Usines Renault SA & Anor v Zhang S192/2000 [2000] HCATrans 672 (7 November 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S192 of 2000

B e t w e e n -

REGIE NATIONAL DES USINES RENAULT SA and RENAULT AUTOMOBILES SA

Applicants

and

FUZU ZHANG

Respondent

Application for expedition

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 7 NOVEMBER 2000, AT 2.06 PM

Copyright in the High Court of Australia

MR T.D. KELLY: Your Honour, I appear for the applicant in this application and the respondent to the special leave application. (of T.D. Kelly & Co)

MR A.S. BELL: And I appear for the applicants for special leave and the respondent to the application for expedition. (instructed by Messrs Connery & Partners)

HIS HONOUR: What is here today is a summons filed on 24 October seeking expedition.

MR KELLY: Yes.

HIS HONOUR: Is that opposed?

MR BELL: No, it is not, your Honour.

HIS HONOUR: Just sit down for a minute, Mr Kelly. How would the applicant on the special leave get into Phillips v Eyre on this case? It is a Voth v Manildra problem, is it not? It is a Voth v Manildra Case.

MR BELL: Well, it is a Part 10 Rule 6A case. It may not be Voth. There is that point left open in the Hyde v Agar point, but the way it gets in is that on the application for a stay, in accordance with Voth, or in accordance with Part 10 6A - and that point was taken before Justice Smart - one of the factors pointed to was what would the governing law be, that being identified in Voth and Spiliada as an important factor which would influence the discretion.

What Justice Smart held or identified as the governing law was French law and one of the factors he took into account in granting a stay conditional on some conditions as to costs and meeting the costs of an expert in proceedings in France or New Caledonia. What the Court of Appeal then said was that he was wrong to identify French law as the governing law or that it was premature for him to do so. That was the error of principle they fastened on to justify interfering with the discretion.

HIS HONOUR: Where do they say that?

MR BELL: It is, your Honour, paragraph 43 on page 14 of the decision:

In these circumstances, did his Honour's finding on the substantive law to be applied infect his discretion causing it to miscarry?

HIS HONOUR: Yes. What do you say about French law?

MR BELL: We say it is the law which governs the - - -

HIS HONOUR: But to the exclusion of New South Wales law?

MR BELL: Obviously it is the New South Wales choice of law rule which is to be applied. That is the first proposition, but - - -

HIS HONOUR: Yes, but what I am trying to get out of you is are you saying that only one of the limbs in Phillips v Eyre applies?

MR BELL: Yes, we are saying that either the choice of law rule presented by the Phillips v Eyre formulation is the lex loci delicti and to the extent that the lex fori plays a role, it is not either the choice of law rule or part of the choice of law rule. In other words, it is the question left open in the first paragraph of Pfeiffer v Rogerson, but in the trans-national context, so there will be a need, if special leave be granted, to entertain that debate but without, of course, the questions of federal jurisdiction which played an important role in the reasoning of that decision.

HIS HONOUR: Yes, thank you. Now, Mr Kelly, is there evidence on of the urgency of this trial from your client's point of view?

MR KELLY: Yes, your Honour. If one goes to the affidavit of myself of 24 October, paragraphs - - -

HIS HONOUR: Yes, I see.

MR KELLY: - - - as to the plaintiff/respondent being a person of modest means. He is paraplegic and the - - -

HIS HONOUR: What is his present medical condition?

MR KELLY: He is and remains paraplegic.

HIS HONOUR: Yes, all right. I will expedite the leave application to the list in Sydney on Friday, 15 December. There should not be any great difficulty in preparing the books, I would think.

MR BELL: No, my client would have the conduct of that matter, being the applicants, and the submissions in response and reply have now been filed.

HIS HONOUR: They seem to be already here.

MR BELL: Yes.

HIS HONOUR: All right. I direct that the special leave application will be entered into the list for hearing at Sydney on 15 December. I order that costs of today's summons be costs of the leave application. I certify for counsel. Is there anything else?

MR BELL: No, your Honour.

HIS HONOUR: I will now adjourn.

AT 2.13 PM THE MATTER WAS CONCLUDED