Commercial Law Update - Need to prove foreign law in Australian courts? It's easier than commonly thought

Commercial Law

Litigators occasionally have the need to prove the content of foreign law in an Australian court. For example, where the proper law of a contract is other than Australian law, but the litigation is conducted here. The content of that law is a question of fact for the court concerned. It is commonly thought that this must be done by means of a report by an expert versed in that foreign law, such as a legal academic or an experienced lawyer of that jurisdiction.

It transpires that s 174 of the Evidence Act 2008 provides a much less onerous means of proving foreign law.

In Re Tang [207] VSCA 171 the Victorian Court of Appeal had to consider whether a note written by the deceased when dying in hospital in China should be admitted to probate in Victoria as an informal will in respect of his Victorian assets. Pursuant to s 17 of the Wills Act 1997 whether it was to be admitted depended on whether it constituted a valid will under Chinese law.

No expert evidence as to Chinese succession law was provided at trial. Instead, the applicant put forward an English translation of an extract of Chinese statutory succession law sourced through AsianLii.

The trial judge held that in the absence of expert evidence to establish the content of China’s law of succession, she was not able to rely on the extract from AsianLII, notwithstanding that a text that she had consulted suggested that the extract from AsianLii was correct. Apparently s 174 of the Evidence Act 2008 was not brought to her attention. That section provides:

"174 Evidence of foreign law

(1) Evidence of a statute, proclamation, treaty or act of state of a foreign country may be adduced in a proceeding by producing—

(a) a book or pamphlet, containing the statute, proclamation, treaty or act of state, that purports to have been printed by the government or official printer of the country or by the authority of the government or administration of the country; or

(b) a book or other publication, containing the statute, proclamation, treaty or act of state, that appears to the court to be a reliable source of information; or


The Court of Appeal held that:

"[64] In the light of  s 174 of the  Evidence Act, expert evidence is not the only means by which the content of a foreign law can be proved to the satisfaction of an Australian court. It appears that, as the judge did not refer to that section, she was under the misapprehension that, in the absence of expert evidence, it was not open to her to make a finding on the content of the Chinese law relating to succession.

[65] Given the risk of error — and perhaps even abuse — it is understandable why, in many cases, strict proof of foreign law, through expert evidence, may be required. However, this was not such a case. This is because the judge conducted her own research on the applicable Chinese law and the text of the Chinese law of succession that was yielded by that research coincided with the text upon which the applicant relied. In accordance with  s 174(1)(b) of the  Evidence Act, the judge should have been readily satisfied that the text was ‘a reliable source of information’ about the applicable Chinese law."

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