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[2003] NSWSC 1053
procedural. The Commonwealth did not require leave to appeal the Master’s decision to a single judge. The matter was referred to the next available call-up list for allocation of a hearing date for the...
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This judgment does not decide whether Australian or Cambodian law governs the plaintiffs’ underlying claims. It decides a narrower procedural question: how the Commonwealth could challenge a Master’s answers to preliminary questions. Shaw J held that the appeal could be heard by a single judge and that leave was not required. The matter was then referred for allocation of a hearing date, with costs reserved.
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The proceeding arose from claims by Sarratti Mills and William John Mills against the Commonwealth. The plaintiffs alleged that an Australian doctor working at the Australian Embassy in Phnom Penh failed to provide medical assistance to their child, David Eric Mills, who died in Cambodia on 28 August 1996. The plaintiffs claimed damages for nervous shock, clinical depression and aggravated, exemplary or punitive damages. The judgment records that some of the factual allegations about requests for assistance were denied by the Commonwealth (paras 1–4).
The proceedings began in the District Court of New South Wales in August 1999 and were later removed to the Supreme Court. Before the substantive claims could be heard, the parties agreed to put questions of law to Master Malpass on an agreed statement of facts. Those questions addressed whether the claims could be maintained in New South Wales, whether they could be maintained in Cambodia, which law applied to liability and damages, and whether New South Wales was an appropriate forum (paras 2–3).
The Master answered that the claims could be maintained in New South Wales, that Australian law applied, and that the Supreme Court of New South Wales was an appropriate forum. The Master was not satisfied that the claims should be struck out. On the question of whether the claims could be maintained in Cambodia, the Master said the material did not permit an answer and was not satisfied that claims of this kind were not maintainable there (para 3).
The Commonwealth sought to appeal some of the Master’s orders. The immediate issue before Shaw J was not whether the Master was right about choice of law, the forum or the merits. It was whether the Commonwealth needed leave to appeal, and whether the appeal could be heard by a single judge or had to be brought before the Court of Appeal (paras 7–10).
Shaw J held that the appeal could proceed before a single judge and that leave was not required. The operative order referred the matter to the next available call-up list for allocation of a hearing date for the separate questions of law. Costs were reserved.
Shaw J began with the statutory and procedural framework. Section 103 of the Supreme Court Act 1970 (NSW) provides for an appeal to the Court of Appeal, with that Court’s leave, from a decision on a question or issue ordered to be decided separately. Section 104 qualifies the appellate structure: subject to the rules, an appeal does not lie to the Court of Appeal from a decision made in a Division constituted by a Master, registrar or other officer (para 11).
The rules supplied the route relevant to the Master’s decision. Shaw J referred to Pt 60 r 17, which provides for certain appeals to the Court of Appeal, subject to leave, where a Master has made a decision upon a “trial” under Sch D. He noted that the defendant said Sch D did not apply, and that he understood this not to be contested. He then cited Wozniak v Wozniak for the ordinary understanding of “trial” as a final determination, as distinct from a preliminary application (para 12).
The key provision was Pt 60 r 10. Shaw J read it as providing a right of appeal from a Master to a single judge, unless the appeal had to be sent to the Court of Appeal under r 17 (para 13). Because the decision at issue concerned preliminary legal questions rather than a trial under Sch D, he concluded that the single-judge route applied. The judgment’s categorical answer on leave was that, for this review by a single judge, “no leave is required” and “there is an appeal as of right” (para 14).
The judgment also considered the character of an appeal from a Master. Shaw J referred to Cross J’s reasoning in Do Carmo v Ford Excavations Pty Ltd that a Master is part of the Court, not merely a delegate, and that an appeal to a judge is an appeal in the strict sense rather than a retrial. The judgment also recounts Cross J’s discussion of the statutory description of the process as a “rehearing” and the approach to appellate review of discretionary decisions in House v The King (para 15).
Shaw J then addressed the Court of Appeal’s decision in Ford Excavations Pty Limited v Do Carmo, which had allowed an appeal from Cross J’s decision. He considered that decision to have turned on a narrower issue about the exercise of discretion to extend a limitation period, rather than the broader procedural question before him. He therefore regarded Cross J’s reasoning as remaining persuasive on the particular point relevant to the nature of an appeal from a Master (para 15). The judgment did not treat Do Carmo as resolving the statutory construction question before it; the provisions and rules themselves supplied the basis for the result.
Shaw J also said it seemed appropriate, as a matter of policy, for procedural questions to be dealt with by a single judge instead of requiring the Court of Appeal to address them. That policy consideration supported his reading of the statute and rules, but the operative reasoning rested on the interaction of ss 103–104 and Pt 60 rr 10 and 17 (paras 8, 13).
The judgment describes the pre-existing procedural framework rather than announcing a broad change in the law. Before this decision, the relevant provisions included s 103, which allows an appeal to the Court of Appeal with leave from certain decisions on separately determined questions or issues; s 104, which limits appeals to the Court of Appeal from decisions of a Division constituted by a Master, subject to the rules; and Pt 60 rr 10 and 17, which allocate certain appeals from Masters between a single judge and the Court of Appeal (paras 11–13).
The practical interpretive question was how those provisions operated together when a Master decided preliminary questions of law. Shaw J’s reading was that Pt 60 r 10 provided the ordinary route to a single judge, while Pt 60 r 17 applied to the specified category of a Master’s decision upon a trial under Sch D. Since the decision in this case was preliminary and not a Sch D trial, r 17 did not require the matter to go to the Court of Appeal (paras 12–13).
The decision’s stated result was that an appeal to a single judge from a Master’s decision in these circumstances did not require leave. In that sense, the judgment clarifies how Shaw J understood the statutory and rules-based structure to apply to the procedural posture before him. It does not establish that every appeal from every Master’s decision is heard by a single judge, because the judgment expressly recognises the r 17 exception.
Nor does the judgment determine the underlying conflict-of-laws question. The Master had concluded that Australian law applied and that New South Wales was an appropriate forum, while the Commonwealth maintained that Cambodian law should apply and that New South Wales was inappropriate. Shaw J expressly said these broader matters were not before him in the application being decided (paras 6, 9–10). Accordingly, the judgment should not be read as approving or rejecting the Master’s choice-of-law reasoning.
The supplied judgment contains no account of subsequent decisions applying or limiting Mills. It therefore supports a description of the rule Shaw J applied in 2003, but not a claim about how later courts have treated the decision.
At [11], Shaw J sets out the statutory tension. Section 103 provides for certain appeals to the Court of Appeal with leave, while s 104 restricts appeals to that Court from decisions made in a Division constituted by a Master, subject to the rules. In plain English, the statute points to a Court of Appeal route for some separately decided issues but also directs attention to the rules governing decisions made by Masters.
At [12], Shaw J deals with the “trial” category in Pt 60 r 17. He records that the Commonwealth submitted Sch D did not apply and that this was not contested. He also states that “trial” ordinarily contemplates a final determination rather than a preliminary application, citing Wozniak v Wozniak. In plain English, the Master’s preliminary legal answers were not treated as a trial for the special appellate route described in r 17.
At [13], the judgment identifies the ordinary route: Pt 60 r 10 “clearly provides” for an appeal from a Master to a single judge unless r 17 requires the appeal to be sent to the Court of Appeal. The practical point is that the single-judge route was the default for the kind of preliminary decision before Shaw J, while r 17 remained an exception for its specified category.
At [14], Shaw J states the leave conclusion in direct terms: “no leave is required” for review by a single judge, and the appeal is “as of right”. This is the judgment’s clearest statement of its procedural holding.
At [15], Shaw J explains why the nature of an appeal from a Master matters. He describes Cross J’s view in Do Carmo that a Master is part of the Court, not merely a delegate, and that the review is an appeal in the strict sense rather than a retrial. He also notes that the Court of Appeal later allowed an appeal in Ford Excavations Pty Limited v Do Carmo, but understood that decision to turn on a narrower question concerning the exercise of discretion to extend a limitation period. In plain English, Shaw J considered the Court of Appeal decision did not displace the particular reasoning about the status of a Master that was relevant to his procedural analysis.
At [16], Shaw J applies his conclusions: the Commonwealth did not need leave and the matter could be dealt with by a single judge. The order that followed was procedural only: a hearing date was to be allocated for the separate questions of law, and costs were reserved.
The decision is most directly relevant where a party seeks to challenge a Master’s decision on preliminary legal questions, and the issue is whether the appeal belongs before a single judge or the Court of Appeal. The features material to Shaw J’s reasoning were that the Master had answered questions of law in advance of the proceedings being heard, the decision was not treated as a “trial” under Sch D, and Pt 60 r 10 was therefore available (paras 3, 12–14).
It may also be relevant when considering whether leave is required for an appeal from a Master to a single judge. Shaw J’s answer was that no leave was needed for the review before him (para 14). The judgment’s reasoning should be applied with attention to the rule-based exception it identifies: if the decision falls within Pt 60 r 17, the appeal route may differ and leave to the Court of Appeal may be relevant (paras 12–13).
The case is not, on the supplied text, authority for resolving the substantive merits of a choice-of-law dispute involving events in another country. Although the underlying litigation involved alleged conduct in Cambodia and disagreement about whether Cambodian or Australian law governed, Shaw J expressly confined his decision to appeal route and leave (paras 5–10). A fact pattern involving a preliminary ruling on foreign law may share the procedural feature, but this judgment does not settle which law governs such a claim.
The supplied judgment does not identify any later court decision that applied, distinguished, followed or criticised Mills v Commonwealth of Australia. It would therefore be unsupported to describe a subsequent line of authority or to assert that later courts adopted Shaw J’s construction.
The judgment itself discusses earlier authority. It cites Wozniak v Wozniak for the ordinary meaning of “trial” (para 12). It explains Cross J’s reasoning in Do Carmo v Ford Excavations Pty Ltd about a Master’s status and the nature of an appeal to a judge, and discusses the later Court of Appeal decision in Ford Excavations Pty Limited v Do Carmo (para 15). Those are authorities considered within Mills, not evidence of how later courts treated Mills.
A full account of subsequent treatment would require later judgments or a case citator, neither of which is included in the material provided. On this source alone, the most that can be said is that Mills records Shaw J’s 2003 interpretation of the statutory and rules-based appeal structure for the preliminary Master’s decision before him.
First, the judgment does not decide the merits of the Commonwealth’s proposed appeal. It determines that the appeal could be heard by a single judge without leave and directs that a hearing date be allocated. It does not say whether the Master’s answers on choice of law, maintainability or forum were correct (paras 3, 10, 16).
Second, the judgment leaves the substantive choice-of-law dispute unresolved. The Commonwealth argued that Cambodian law was the proper law and that the relevant conduct occurred wholly in Cambodia. The Master had found that Australian law applied and New South Wales was an appropriate forum. Shaw J expressly excluded those broader considerations from the application before him (paras 6, 9–10).
Third, the judgment’s procedural holding depends on the decision not falling within Pt 60 r 17’s category of a Master’s decision upon a trial under Sch D. Shaw J noted that this was not contested in the case and used the ordinary distinction between a trial and a preliminary application (para 12). The supplied reasons do not decide how that classification would apply to other kinds of Master’s decisions or different procedural records.
Fourth, the judgment does not provide a comprehensive account of every possible interaction between ss 103 and 104 and Pt 60 rr 10 and 17. Its conclusion is tied to the particular preliminary decision before it. The text supports the proposition that Shaw J read r 10 as providing an appeal as of right to a single judge in these circumstances, subject to the r 17 exception, but does not resolve hypothetical cases outside that setting.
Finally, later treatment remains unaddressed in the supplied material. The judgment alone cannot establish whether subsequent courts have followed, qualified or reconsidered its procedural interpretation.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have it checked by a qualified Australian lawyer.
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 Do Carmo v Ford Excavations Pty Ltd [1981] 1 NSWLR 409; CASES CITED : Ford Excavations Pty Ltd v Do Carmo [1981] 2 NSWLR 253; House v The King (1936) 55 CLR 499; Sarratti Mills - First Plaintiff PARTIES : 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 COURT Supreme Court JURISDICTION : LOWER COURT 20075/00 FILE NUMBER(S) : LOWER COURT Malpass M JUDICIAL OFFICER :
IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION
20075 of 2000 Sarratti Mills (Plaintiff/Respondent)
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
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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Mills
Commonwealth of Australia
(1936) 55 CLR 499
The Commonwealth did not require leave to appeal the Master’s decision to a single judge. The matter was referred to the next available call-up list for allocation of a hearing date for the separate questions of law identified by the parties. Costs were reserved.