Inflexibly Inflexible: Why Choice of Law in Tort Questions Still Won't Go Away

The High Court of Australia recently changed the common law rule for choice of law in tort matters to a rule which requires the application of the law of the place of the tort. The change for domestic or intranational choice of law came in 2000 in John Pfeiffer Pty Ltd v Rogerson, and the change for international cases came two years later in Regie Nationale des Usines Renault SA v Zhang. In both contexts, the High Court opted for an inflexible rule which leaves Australian judges no discretion to apply any other law than that of the place where the tort occurred. Four choice of law in tort cases decided by the High Court since Zhang, however, have made it very clear that flexibility can and does come in, even though the rule purports to deny it. This paper looks at these back-door varieties of flexibility and argues for a reconsideration of the value of an openly and transparently flexible rule