Mills v Commonwealth of Australia

[2003] NSWSC 1053

CITATION:	Mills v Commonwealth of Australia [2003] NSWSC 1053
HEARING DATE(S):	22/10/03
JUDGMENT DATE:	14 November 2003
JUDGMENT OF:	Shaw J
DECISION:	(1) Refer the matter to the next available call up list for allocation of a hearing date for the separate questions of law identified by the parties; (2) Costs reserved.
CATCHWORDS:	Practice and procedure - Choice of law - whether decision of Master should be appealed to the Court of Appeal or a single judge - whether leave required
LEGISLATION CITED:	Supreme Court Act 1970 ss 75A, 103, 104 Supreme Court Rules 1970 Pt 60 rr 10, 17
CASES CITED:	Do Carmo v Ford Excavations Pty Ltd [1981] 1 NSWLR 409; Ford Excavations Pty Ltd v Do Carmo [1981] 2 NSWLR 253; House v The King (1936) 55 CLR 499;
PARTIES :	Sarratti Mills - First Plaintiff William John Mills - Second Plaintiff Commonwealth of Australia - Defendant
FILE NUMBER(S):	SC 20075/00
COUNSEL:	M Condon - Plaintiffs P Jones - Defendant
SOLICITORS:	Gibsons Lawyers - Plaintiffs Australian Government Solicitors - Defendant

LOWER COURTJURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	20075/00
LOWER COURT JUDICIAL OFFICER :	Malpass M

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Shaw J

14 November 2003

20075 of 2000


Sarratti Mills (Plaintiff/Respondent)

and

William John Mills (Second plaintiff/Respondent)

v

The Commonwealth of Australia (Defendant/Applicant)

JUDGMENT

1 Shaw J: This application challenges a decision of Master Malpass of 29 August 2003 (Mills & Anor v Commonwealth [2003] NSWSC 794) in which the Master considered certain questions asked of him as preliminary to the proceedings being heard. The claim commenced in the District Court against the Commonwealth of Australia in actions for breach of contract and in tort alleging a breach of duty of care. The essence of the claim is based upon nervous shock suffered by the plaintiffs who seek damages, as well as aggravated, exemplary or punitive damages. The proceedings were removed from the District Court to this Court.

2 There was an agreed statement of facts tendered before the learned Master as follows:

The statement of facts contain the following:
1 The First Plaintiff was born on 27 July 1969.
2 The First Plaintiff was at all material times a Cambodian National.
3 The Second Plaintiff was born on 27 June 1947.
4 The Second Plaintiff was at all material times an Australian National.

5 The First Plaintiff is the mother of David Eric Mills, (hereinafter referred to as the ‘deceased’), who was born in Phnom Penh on 30 August 1995. The deceased was an Australian citizen.

6 The Defendant maintained an Embassy in Phnom Penh, which, inter alia was staffed by an Australian doctor (Dr Dubow).
7 Dr Dubow, in carrying out his duties operated an Embassy Clinic which was situated in the residence occupied by Dr Dubow. At all relevant times Dr Dubow was a Diplomatic agent for the Commonwealth.
7A The document marked ‘A’ was published in or about February 1996 by the defendant in an English language newspaper circulating in Phnom Penh. Subsequently the second plaintiff caused a letter to be forwarded to the defendant 22.2.96 which is marked ‘B’.
8 On 18 August, the deceased fell ill and was admitted to a Cambodian hospital in Phnom Penh.
9 On 22 August 1996, the First Plaintiff was advised by a Cambodian doctor that that hospital could not determine the nature of David Eric Mills condition.
10 The Plaintiffs allege that the Second Plaintiff requested Dr Dubow to examine the deceased and to make a diagnosis of his condition. It is further alleged that Dr Dubow refused this request.
11 On 23 August 1996, the deceased was discharged from the hospital with arrangements for a follow up examination to take place on 28 August 1996.
12 On 28 August 1996 the First Plaintiff took the deceased back to the hospital where some blood was taken from the deceased who shortly thereafter died.
13 It is alleged by the Plaintiffs that following the death of the deceased the First Plaintiff at approximately 12.30 pm on 28 August 1996 took the deceased home, washed him and returned to the Australian Embassy and requested assistance from Dr Dubow. It is alleged that Dr Dubow refused to see the First Plaintiff. These allegations are denied by the Defendant.
14 It is alleged that a family friend Mr Newman also sought Dr Dubow’s assistance in this matter on 28 August 1996 and again this assistance was refused.
15 It is alleged by the Plaintiffs that the inaction of Dr Dubow, caused the Plaintiffs to suffer nervous shock.
16 The Plaintiffs initially commenced proceedings in the District Court of New South Wales on 27 August 1999 seeking damages for nervous shock, clinical depression along with aggravated, exemplary and punitive damages.
17 The Plaintiffs moved to Australia from Cambodia in 1997.
18 Dr Dubow is currently a resident of Australia.”

3 By consent, the parties sought answers to questions of law raised for the Master on the basis of these agreed facts which were fundamental to the plaintiffs’ case. The questions (and the answers given by the Master) were as follows:

1 Are the plaintiffs’ causes of action maintainable in the Supreme Court of New South Wales regardless of whether they would be maintainable in Cambodia

Yes

2 If the answer to question 1 is in the negative, then are the plaintiffs’ causes of action maintainable in Cambodia?
An answer cannot be gleaned from the material. The best that the court can do is to observe that it is not satisfied that causes of action of the kind sought to be prosecuted here by the plaintiffs are not maintainable in Cambodia.


3 If the answer to question 2 is in the negative, then should the plaintiffs’ causes of action be struck out?

I am not satisfied that the causes of action should be struck out.
4 If the answers to question 1 or 2 are in the affirmative, then should the law of Cambodia, or Australia, be applied with respect to the issues of:

(i) liability; and
(ii) quantum?

The law of Australia applies.

5 If the answer to questions 1or 2 is in the affirmative, is the Supreme Court of New South Wales an appropriate forum to hear the plaintiffs’ claims?
Yes

4 The plaintiffs’ case alleges, in accordance with the statement of claim filed in August 1999, that a medical practitioner employed by the Commonwealth in Phnom Penh (in the Australian Embassy) and having a duty to extend all proper medical care and assistance to the plaintiffs failed in that duty. The gist of the complaint made by the plaintiffs is that their child, born on 30 August 1995 in Phnom Penh, was admitted to a Cambodian hospital, and following various treatments, died on 28 August 1996 and that Dr Dubow declined to attend on the child (David) at the plaintiffs’ requests.

5 There are complicated issues, raised by the defendant, as to what is the applicable law, though in particular the defendant alleges that the relevant legal regime is the lex loci delicti.

6 Before the Master, both sides of the record relied upon expert evidence with respect to Cambodian law. Master Malpass determined, after having carefully considered the expert evidence tendered, that the law as applied in this State was the proper law, and found that the closest and most real connection in relation to the tort alleged was with the legal system in Australia.

7 The defendant has sought to appeal against some of the orders made by the Master. Kirby J, in a directions hearing in the duty list on 13 October 2003, has isolated what might be thought to be an important preliminary issue of practice and procedure, namely whether leave is required to proceed with such an appeal. It is also relevant to consider whether any such application for leave to appeal, and the appeal itself, can be dealt with by a single judge of this Court or whether the matter needs to be dealt with by the Court of Appeal.

8 On the face of things, it would seem incongruous that the Court of Appeal should be troubled by procedural matters of this kind and that, ordinarily, a single judge should be able to deal with an appeal from a Master, or at least one of this character. Nevertheless, the matter requires consideration of the relevant statutory provisions and the rules of the Court.

9 The defendant’s position has been and remains that the laws of Cambodia are the proper law of the contract and should be applied in these proceedings. The defendant also maintains the position that the tort or contractual breach alleged in the proceedings occurred wholly in Cambodia, and contrary to the determination of the Master, that the Supreme Court of New South Wales is an inappropriate forum for disposition of this controversy.

10 However, these broader considerations are not before the Court in the present circumstances. Rather the issue is a narrow and limited one as to whether the question of leave, and the hearing of that appeal, can be dealt with by the Court as currently constituted, or whether it needs to go to the Court of Appeal, and, if so, whether leave would be required.

11 It is inappropriate that such a relatively simple matter of practice and procedure should be attended by the difficulties which have been agitated before this Court. As the defendant has pointed out, s 103 of the Supreme Court Act 1970 provides:

An appeal shall, by leave of the Court of Appeal, lie to the Court of Appeal from a decision in proceedings in the Court on any question or issue ordered to be decided separately from any other question or issue.


However, this provision is modified by the provisions of section 104 of the Act which provides that:

Subject to the rules, an appeal shall not lie to the Court of Appeal from any decision, judgment, order, opinion, direction or determination of the Court in a Division constituted by a master, registrar or other officer.

12 Pt 60 r 17 of the Rules contains certain provisions about appeals lying to the Court of Appeal, subject to the leave of that Court, when the decision is one of a master of the Court upon a ‘trial’ pursuant to Sch D of the Rules. The defendant submits that Sch D is not applicable. I do not understand this to be a matter of contest between the parties. Ordinarily, the word ‘trial’ contemplates a final determination as distinct from a preliminary application: Wozniak v Wozniak [1952] P 179.

13 However, Pt 60 r 10 of the Rules clearly provides for a right of appeal against the decision of the Master to a single judge unless the appeal must be sent to the Court of Appeal pursuant to Pt 60 r 17 of the Rules. Therefore, as a matter of policy, it seems to me appropriate that questions of practice and procedure should be dealt with by a single judge of the Court rather than troubling the Court of Appeal with such questions and I am of the view that the rules of the Court and the relevant statutory provisions can be construed consistently with that policy.

14 In relation to the review by a single judge from the decision of a master, no leave is required, that is, there is an appeal as of right.

15 As Cross J observed in Do Carmo v Ford Excavations Pty Ltd [1981] 1 NSWLR 409, a master is a part of this Court and any appeal from the decision of a master to a single judge is not a retrial; it is an appeal, stricto sensu. Do Carmo concerned an application by a plaintiff that a limitation period should be extended. The Master had acceded to that application and his Honour was considering an appeal from that order. Cross J emphasised (at 415) that the Master was no mere delegate, but the Court itself. Though it was acknowledged that the nature of an appeal from a master to a judge is described in section 75A(5) of the Supreme Court Act as a ‘rehearing’, Cross J observed (at 419) that this expression has not been construed as requiring a retrial. His Honour applied the well-known passage in relation to appellate review of discretionary decisions contained in House v The King (1936) 55 CLR 499 where the High Court drew attention to the fact that it was a requirement, in an appeal from the primary judge in exercise of discretion, that the appellate court must detect some error or some wrong application of principle. An appeal was allowed by the Court of Appeal against the decision of Cross J to which I have referred: see Ford Excavations Pty Limited v Do Carmo [1981] 2 NSWLR 253. However, it seems to me that the decision of the Court of Appeal turns on narrower questions than the broader considerations to which I have presently referred. Certainly, the Court of Appeal overruled the decision of Cross J in part, but their Honours were concerned in essence with a separate point, namely whether a reasonable person who has taken appropriate legal advice could be thought to have induced in him a belief as to the worthwhile nature of his case and that he ought to launch it. In other words, the Court of Appeal focuses upon the nature of the exercise of discretion as to the extension of the statute of limitations rather than the more general considerations which are relevant to me in the present application. I therefore regard the reasoning of Cross J as remaining persuasive on that specific point.

16 In all of these circumstances, I do not believe that the Commonwealth requires leave to appeal and I am of the view that the matter can be dealt with by a single judge of this Court. Accordingly, I refer the matter to the next call-up for the allocation of a date for hearing of the separate question of law which has been identified for decision.

Orders

1) Refer the matter to the next available call up list for allocation of a hearing date for the separate questions of law identified by the parties;

2) Costs reserved.

*****

Last Modified: 11/14/2003