Litigation 101: Evidence – using foreign law in Australian litigation

Sometimes when conducting litigation in Australia, issues of foreign law (meaning the national laws of a country other than Australia) may arise, for example, when a contract contains a choice of law clause which permits the parties to bring proceedings relating to a dispute in Australia.

In Australian courts, foreign law is viewed as a question of fact that is proved by expert evidence. Taking steps to early identify and retain a foreign law expert can be critical for the development of your case theory in a litigation.

When is evidence on foreign law necessary in Australian litigation?

In general terms, there is no positive obligation on parties to plead foreign law in Australia. However, there are some situations where it may be necessary to do so, for example, because of elections made under choice of law clauses, when a party uses foreign law as a substantive defence, and in immigration cases.

In these cases, you may need to obtain expert evidence of the foreign law to support the interpretation of the law you are seeking from the court.

The expert evidence you obtain can then be used to formulate your pleading as to the foreign law in issue.

How do I use foreign law evidence?

Australian courts are not presumed to have any knowledge of foreign law and, absent proof of, or agreement about, foreign law, the law of the forum is to be applied. This means that it is the preference of Australian courts for litigants to plead Australian law, and it is the exception that foreign law is accepted.

A party relying on foreign law will need to plead and prove both the applicability and the content of the relevant parts of the foreign law.

The content refers to the substance of foreign law that is to be applied. The substance usually comes from expert evidence. To enable this, you will provide your foreign law expert with a brief containing the questions you seek their opinion to answer and the relevant documents they need to consider (for example, the contract you are seeking to interpret). The expert will then provide a written report detailing the substance of the relevant foreign law.

Practically, the process is the same as engaging any other expert witness – you retain an expert to give opinion evidence in the proceeding, ensure independence of the expert, and ensure that the expert is aware of their role and duties to provide relevant and impartial evidence about their area of expertise. You should review the Federal Court Expert Evidence Practice Note, which outlines the requirements and obligations of expert witnesses and provide a copy of the note to your expert with the brief.

An expert on foreign law is generally a lawyer who practices in the relevant area of law in the relevant country. For example, in a recent matter we engaged an English barrister to provide an expert opinion on matters of English law, because a contract relevant to the dispute contained a choice of law clause electing English law.

Are there any drawbacks or issues I should think about?

Finding an appropriate expert on foreign law of a particular jurisdiction is much like engaging any expert. It involves searching for lawyers in the country you are dealing with or seeking recommendations within the firm for foreign practitioners. It’s important to remember to conduct a conflict check before engaging any foreign experts.

There are a lot of potential costs involved with engaging an expert who is qualified and/or located abroad. It is important to be transparent about these with your client from the outset.

Naturally, when dealing with foreign jurisdictions, it may be the case that the expert witness does not speak English or is not proficient in English. If so, your client will have to engage a translator to translate any documents (including instructions to the expert and any reports from the expert) and may require an interpreter to attend any meetings or conferences.

You will also need to consider whether your expert witness will be required to attend trial and make sure your client is aware of the associated costs.

Another important issue to be aware of is the strict obligation of witnesses to remain impartial and of lawyers to be careful in their communications with expert witnesses to preserve the independence of the witness. This was affirmed last year by the Federal Court in New Aim Pty Ltd v Leung [2022] FCA 722, in which the Court found that the plaintiff’s solicitors had been involved in the drafting and finalising of the expert report relied on by the plaintiff and had failed to disclose this involvement. Consequently, the Court rejected all of the evidence of the plaintiff’s expert.

Although solicitors can be involved in assisting an expert to ensure their report is in an admissible form and written in a logical and reasoned manner, solicitors and experts must be transparent about the extent of solicitors’ involvement. You must be careful to avoid communications that may undermine or appear to undermine the independence of the expert or distort the substance of the opinion such that it loses its essential character as an independent report.