The Supreme Court of Appeal in Victoria has recently made it easier to prove Chinese law in Victoria in its judgment in Re Tang [2017] VSCA 171.
It was commonly believed that foreign law must be proved by a report of an expert (an academic or experienced lawyer from the foreign country). It seems that under s. 174 of the Evidence Act 2008, it is much easier than one had initially thought.
Re Tang raises the question whether a note written by the deceased while he was dying in a hospital in China should be admitted in Victoria as an informal will in respect of his assets in Victoria.
The answer depended on whether that note constitutes a valid will under Chinese law.
No expert report from China was tendered into evidence as to China's succession law. The applicant put forward an English translation of an extract of Chinese statutory succession law sourced from a legal website (http://www.asianlii.org)
At first instance, the trial judge rejected the evidence as there was no expert evidence despite the accuracy of the Chinese law (confirmed by the trial judge's own research). The trial judge was, however, not referred to s. 174 of the Evidence Act 2008 during submissions.
On appeal, the Court of Appeal said that expert evidence was not the only means by which the content of a foreign law could be proved to the satisfaction of the Australian court.
Under s. 174 of the Evidence Act 2008, however, it was open for the trial judge to have been readily satisfied that the text (and translation) was a reliable source of information about the applicable Chinese law of succession.
The Court's opinion on this issue is set out in paragraphs [64] and [65] of the judgment.
Despite this judgment, it remains prudent for practitioners to obtain an independent expert opinion on the law of the foreign country, particularly when the law may not be clear cut.