Law

Proving foreign law (China) in an Australian Court /  by William Lye

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.

The High Court has spoken on the Advocate's immunity from suit /  by William Lye

It has been the law in Australia that the Advocate's immunity extends to work done out of court which leads to a decision affecting the conduct of the case in court.  This immunity extends to protect a solicitor involved in the conduct of litigation in court. The application of the scope of the duty is often difficult and unsatisfactory, leading to calls for its abolition.

In a 5-2 decision, the High Court of Australia (FRENCH CJ, KIEFEL, BELL, GAGELER AND KEANE JJ) decided today in Attwells v Jackson Lalic Lawyers [2016] HCA 16 that the Advocate's "immunity does not extend to acts or advice of the advocate which do not move litigation towards a determination by a court. In particular, the immunity does not extend to advice that leads to a settlement agreed between the parties."  

The majority considered that in the case before it, there was no determination by a court as "the consent order and associated notation by the Court reflected an agreement of the parties for the payment of money in circumstances where no exercise of judicial power determined the terms of the agreement or gave it effect as resolving the dispute. The consent order may have facilitated the enforcement of the compromise, but it was the agreement of the parties that settled its terms."

This means that if a client is advised by its lawyer to settle a case and enters into terms of settlement evidencing their agreement without any "judicial determination" by the court then the advocate's immunity does not apply if the lawyer is negligent in providing that advice.  In other words, the lawyer is not immune from a legal suit for providing the wrong advice even if consent orders were made by the Court.

NETTLE J (who along with GORDON J dissented) accepted  that "when a matter is settled wholly out of court, the settlement does not move the litigation towards a determination by the court. Consequently, advice to enter into such a settlement does not attract the immunity."  His Honour, however, differs from the majority as to when "judicial determination" occurs as he considers the immunity applies "where a matter is settled out of court on terms providing for the court to make an order by consent that determines the rights and liabilities of the parties, the settlement plainly does move the litigation toward a determination by the court."  

GORDON J, in dismissing the appeal, considered that there was a final quelling of the controversy between the parties by the consent order, i.e. by the exercise of judicial power.  Her Honour considered that work that contributes to the final quelling of a controversy by the exercise of judicial power is "work intimately connected with" work in a court.

The High Court (with whom the dissenting justices NETTLE and GORDON JJ agreed), however, did not abolish the application of the Advocate's immunity. The justices did not see any need to reconsider its earlier decisions on this issue in D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 and Giannarelli v Wraith (1988) 165 CLR 543.  The  majority said that "an alteration of the law of this kind is best left to the legislature."

For now, Advocates continue to be immune from suit when they undertake work as an officer of the Court in the quelling of disputes which contributes to the exercise of judicial power and determination by the Court.