Reported Decision : (2003) Aust Torts Reports 81-714 New South Wales Supreme Court CITATION : Mills & Anor v Commonwealth of Australia [2003] NSWSC 794 HEARING DATE(S) : 6 and 8 August 2003 JUDGMENT DATE : 29 August 2003 JURISDICTION: Common Law Division JUDGMENT OF : Master Malpass DECISION : See paragraph 33. CATCHWORDS : Separate questions - causes of action in contract and tort for nervous shock - are actions maintainable in Cambodia - what law is applicable - inappropriate forum. LEGISLATION CITED : Evidence Act 1995, s 79. Trade Practices Act 1974 (Cth), s 74. Henry v Henry (1996) 185 CLR 571. HG v The Queen (1999) 197 CLR 414. CASES CITED : John Pfeiffer Pty Limited v Rogerson (2000) 203 CLR 503. Perlak Petroleum Maatschappij v Deen [1924] 1 KB 111. Regie National Des Usines Renault SA & Anor v Zhang (2002) 76 ALJR 551. Scruples Imports Pty Ltd v Crabtree & Evelyn Pty Ltd (1983) 1 IPR 315. Saratti Mills (First Plaintiff) PARTIES : William Jon Mills (Second Plaintiff) v Commonwealth of Australia (Defendant) FILE NUMBER(S) : SC 20075 of 2000 COUNSEL : Mr M B Williams SC/Mr M Condon (Plaintiffs) Mr P Jones (Defendant) SOLICITORS : Gibsons Lawyers (Plaintiffs) Australian Government Solicitor (Defendant) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Master Malpass Friday 29 August 2003 20075 of 2000 Saratti Mills & Anor v Commonwealth of Australia JUDGMENT 1 MASTER: In 1999, the plaintiffs commenced proceedings in the District Court. Claims are made against the defendant both in contract and tort alleging breach of duty of care. The plaintiffs claim to have suffered nervous shock and seek inter alia not just damages but aggravated, exemplary or punitive damages (see paragraph 23 (b) and (c) of the Statement of Claim). 2 The proceedings have been removed into this Court. An Appearance and a Defence have been filed. These steps have effected a submission to the jurisdiction of the court. 3 Orders have been made for the separate determination of certain questions. The questions are 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? 3. If the answer to question 2 is in the negative, then should the Plaintiffs' causes of action 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? 5. If the answer to questions 1 or 2 is in the affirmative, is the Supreme Court of New South Wales an appropriate forum to hear the Plaintiffs' claims?" 4 The hearing of the separate questions commenced on 6 August 2003. The parties tendered an agreed Statement of Facts (Exhibit A1). The plaintiffs tendered an affidavit sworn by Bora Touch. The defendant tendered an affidavit sworn by Ry Ouk. 5 The statement of facts contains 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 1996, 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 12.30pm 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." 6 Both Messrs Touch and Ouk were presented as experts in the field of Cambodian Law. A vigorous challenge was made to the admissibility of the evidence proposed to be given by Mr Touch. It was contended that he lacked the requisite specialised knowledge required by s 79 of the Evidence Act 1995. After hearing both evidence and submissions, I made a ruling on the question. It was made after considerable deliberation. I came to the view that, in the light of the decided cases (which demonstrate the adoption of a flexible approach), his evidence should be received, despite my concerns as to the weight that may be ultimately given to his evidence. He was then cross-examined at some length. The plaintiffs made a belated decision to cross-examine Mr Ouk. Notice requiring his presence for cross-examination had not been given in accordance with earlier directions made by the court. It was not given until shortly before the hearing. At that time, the defendant was unable to arrange for him to be present in court. Objections were made to passages in his affidavit. Because of a need to reflect on the questions of admissibility, the course was taken to receive certain of that material subject to objection with the court ruling on the objections at a later stage when it had the advantage of further submissions from counsel. 7 I now turn to certain of the material presented by the two deponents. For present purposes, it is unnecessary to reproduce the detail of what has been said. 8 Mr Touch states that mental injury exists in Cambodian Law and that it is analogous to nervous shock. He presents the view that there is nothing in Cambodian legislation which expressly provides for compensation for nervous shock and that to date no case of nervous shock has been brought. He says that there is little civil work (especially torts). Despite these matters, he opines that there is no barrier for those who wish to bring a nervous shock lawsuit in a Cambodian Court. He relies on section 4 (2) of Law on Organization and Activities of Courts of State of Cambodia. It allows courts to have recourse to customs, traditions, conscience and equity. He sees it as creating the necessary compliance and means to bring a nervous shock action against a State official for damages caused by that official. He further opines that a foreigner will come under the jurisdiction of Cambodian Courts if the offence, criminal or civil, has been committed on Cambodian soil. 9 Before looking at Mr Ouk's evidence, it is first necessary to deal with the objections made to paragraphs 8, 9, 10 and 13 of his affidavit. The objections were founded on the provisions of s 79 and what has been said in the decided cases (including Perlak Petroleum Maatschappij v Deen [1924] 1 KB 111 and HG v The Queen (1999) 197 CLR 414). There is no reference in paragraphs 8, 9, 10 or 13 to the materials to which the deponent had regard in forming his opinion. However, by implication paragraphs 4 and 5 identify the factual circumstances and the documents to which he had regard. There may be some ambiguity in paragraph 8 (the reference to "legal practice"). However, I consider that it can be read as being intended to mean "the law of Cambodia". Accordingly, I propose to disallow the objections and allow the material into evidence. 10 Mr Ouk says that Cambodia does not have a developed law of tort and that tort law as it is known in the common law system is currently in a relatively undeveloped state. 11 In paragraph 9 of his affidavit he says "I am of the view that a cause of action would most likely not apply in a Cambodian Court to matters arising out of the facts recited above in paragraph 4 of my Affidavit and the allegations set forth in the Statement of Claim." In paragraph 10 he says "I am firmly of the view that no action for nervous shock, in the absence of physical injury, can be brought in a Cambodian Court." In paragraph 11 he refers to a limitation period of 3 years which applies to compensation claims under contract law. In paragraph 13 he concludes with the view that "It is my opinion that no Tort action could presently be taken against the Australian Government in a Cambodian Court." 12 Before proceeding further, I should digress to say that it is common ground that these proceedings have been brought within the limitation period. 13 Both witnesses refer to inter alia The Constitution 1993, The Contract Law of Cambodia (Decree 38D Referring to Contract and Other Liabilities) and the Law on Criminal Procedure. Save as to these laws, each has referred to other and different material. Mr Touch relies on the Law on Organization and Activities of Courts of State of Cambodia. Mr Ouk does not refer to it. 14 The section of the Contract Law which deals with what we know as torts is Chapter Three ("Other Liabilities"). It contains a small segment of the Law (Articles 121 – 135). The section which is said to have application to the alleged contract is the general provisions. Both witnesses recite Article 121 in their respective affidavits. 15 What is presented by Messrs Touch and Ouk leaves the court with conflicting material. Each party contends that their own expert should be preferred. 16 Mr Touch is a Cambodian who has New South Wales qualifications and practises law in Sydney (he is employed by the Legal Aid Commission of NSW). His academic training in Cambodian Law involved about 19 months in or about 1992 at a resistance or refugee camp on the Cambodian/Thai border. He did not appear in any civil matters. He came to Australia in 1996. He recently became a member of the Cambodian Bar Association. The purpose of the admission is to enable him to appear for former Khmer Rouge cadres in any future criminal trials. His Curriculum Vitae is Exhibit B. He has written various publications (including a Thesis Exibit 2). Largely, his experience has been in the area of criminal law. 17 Mr Ouk is a lawyer practising in Phnom Penh with legal qualifications from New Zealand. He is admitted to practice also in that country. The affidavit of Mr Ouk throws little light on the nature and extent of the experience had by him in relation to Cambodian Law (in particular in the area of civil law). 18 The opinions expressed by him in paragraph 10 of his affidavit are dependent on his reading of Article 121 of the contract law. A consideration of that article reveals that his reading of it is erroneous. 19 The plaintiffs say that the making of such a basic error casts doubt on the reliability of his evidence. In my view, there is much force in that submission. 20 I also do not find Mr Touch's evidence all that helpful. His evidence does not disclose what assistance may be gleaned from customs, traditions, conscience and equity. It abounds with generality and conclusion. Even if it was to be accepted, it has its limitations (inter alia, he speaks in terms of "no barrier") and depends on what may be gleaned from the unknown (customs, traditions, conscience and equity). What relationship there may be between "mental injury" as understood by Mr Touch and the law of nervous shock in this State is largely obscure. 21 To the extent that it is relevant, and it has not been the subject of submissions, I may add that the evidence affords no assistance on the question of whether aggravated, exemplary or punitive damages are recoverable. 22 It seems to me that both presented experts have shortcomings in skill, training and experience and that they fall well short of providing the best possible evidence. 23 I am not satisfied that either of Messrs Touch or Ouk have the expertise to express opinions which the court can regard as reliable. Each of them gives but limited assistance. Further, I am not satisfied that I should prefer the views of Mr Ouk to those of Mr Touch. 24 The material does throw up general information concerning the Cambodian legal system. I shall briefly mention some of it. It tends to illustrate the state of flux in which that legal system presently stands. 25 Cambodia has had a volatile history (including in more recent times). Because it had been a French protectorate, there is a French influence (particularly in areas of civil law). It has been described as having a civil law system (like France), which recognises nervous shock. There are said to be common law influences (such as in the constitution). There is material that suggests that the current legal system is modelled to some extent on that of the Soviet Union (by reason of the Vietnamese occupation). It seems that few cases are brought which involve the prosecution of what this Court regards as a tort and that there is no developed law in that area. 26 There is no requirement that a member of the judiciary have a law degree or any level of legal training. Indeed, many of them have no legal qualifications. There is but limited publication of case law. There is a Bar Association. Membership is now a prerequisite to practice. It was established in October 1995. There are not a large number of practitioners. It appears that the Bar Association plays some role in training. However, it is unclear from the material as to whether or not there are other teaching institutions. There is material which suggests that the Bar Association has become a politicised body which has been accused of corruption. It has been said that the political system may be in the throws of moving from authoritarianism to democracy. 27 In such circumstances, it may be difficult (if not near impossible) to locate and produce an expert who can give reliable evidence on the relevant areas of law which will assist the court. If it is possible to do so, it may involve great expense. 28 The authorities show that questions as to what is the relevant foreign law and what is its meaning and effect are issues of fact upon which evidence is receivable. These tasks are primarily those of the expert witness. The authorities also show that where the expert evidence inter alia falls short of assisting the court, the court may, where the relevant law is reduced to writing, apply its own rules of construction and interpret the law itself (Scruples Imports Pty Ltd v Crabtree & Evelyn Pty Ltd (1983) 1 IPR 315 at 323 – 325). 29 In the present case, such a course would not resolve the difficulties confronting the court. Such writing as there is generates its own problems. It comes in the form of a translation. Certain of the material borders on the incomprehensible. This may be due either to poor translation or difficulties in translating the foreign material into English. An attempted construction of this material would not provide any of the answers to the questions for determination. On one view, the task facing the court also requires it to have regard to inter alia material that has not been shown to be in express form. Indeed, the relevant content thereof is not even before the court. 30 It is in this context that the court comes to grapple with the questions. I should also add that the matters earlier mentioned have also made it difficult for the court to deal with other questions that have cropped up during the hearing (including the evidence of the persons presented as experts). 31 It is a context which leaves the court in a position where it has little alternative but to accept a view canvassed in argument which is to the effect that what may be the content of the law applicable to the causes of action propounded by the plaintiffs falls within the contemplation of unchartered territory. It is a fertile area for competing views. The prospects of rendering things less uncertain seems to be in the realm of speculation. On the evidence before me, the law may be described as unsettled or perhaps even presently unknown. 32 Although the relevant events took place in Cambodia, the plaintiffs and Dr Dubow are now in Australia. The plaintiffs are being treated by practitioners in this State. Presumably, at the very least, most of the potential witnesses are in either New South Wales or elsewhere in Australia. There is no evidence to suggest that there would be any hardship or prejudice to the defendant if the trial were to take place in New South Wales. 33 I now turn to the questions for determination. I respond to them as follows:- 1. It seems to be common ground that the answer is no in respect of the tortious claim. There is dispute concerning the contractual claim. The plaintiffs say that in respect of that claim the answer is yes. Despite the dispute, this aspect of the question excited little by way of submissions. Nothing was said on behalf of the defendant in support of its opposition on this part of the question. In my view, the answer to that part of it is "yes". 2. The question as to whether or not the alleged causes of action are maintainable in Cambodia has been put in issue by the defendant in the Defence (paragraph 17). Questions of onus have not been debated. On one view, the defendant bears the onus of satisfying the court that the causes of action are not maintainable in Cambodia. If that be the case, it has failed to discharge that onus. Whether or not that be the case, in my view, it is just not possible to give a direct answer to question 2. It seems to me, on the material presented in this case, that the court is not able to express a definitive view. An answer cannot be gleaned from the material. The best 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. If the matter proceeds to a trial in New South Wales, it may be that the plaintiffs will leave it to the defendant to bear the onus to show that the relevant Cambodian law differs from the law of Australia. 3. By reason of what has been earlier said, I am not satisfied that the causes of action should be struck out. 4. There is no dispute that the lex loci delicti (Cambodia) should determine the issue of liability (see inter alia Regie National Des Usines Renault SA & Anor v Zhang (2002) 76 ALJR 551) in respect of the tortious claim. The plaintiffs say that the law of Australia should be applied with respect to the contractual issue of liability and to the contractual and tortious issues of quantum. In Zhang , the majority applied what was said in John Pfeiffer Pty Limited v Rogerson (2000) 203 CLR 503 (inter alia that all questions about the kinds of damage or amount of damages that may be recovered would be treated as substantive issues governed by the lex loci delicti). However, they reserved for further consideration, as the occasion arises, whether that proposition should be applied in cases of foreign tort (para 76). It seems to me that likewise this Court should reserve the question for further consideration. Such an approach was not opposed by the parties. It may be that the High Court had in mind situations which throw up the problems to be found in the present case. There is little guidance in the material as to the nature and extent of damages that may be awarded by a Cambodian Court. There is dispute as to the applicable law in the case of the contractual claim. The plaintiffs say that it should be the law of Australia and the defendant says that it should be the law of Cambodia. There is no express or implied choice of law. Accordingly it is common ground that the test of the closest and most real connection should be applied to determine the proper law. This test requires the court to look at the circumstances as they existed at the time of the formation of the contract. If there be a contract, it was made in Cambodia. It was also the place of performance. What is complained of involves a responsibility of the Australian Government and took place in a context of services which are provided by its Embassy. The services of the Embassy Staff Clinic were restricted inter alia to those having a specific agreement with the Australian Government. Access was available to inter alia Australians and the function of the clinic was to provide Western style medical services. The Australian Government was a party to the alleged agreement. The clinic had an Australian doctor. One of the plaintiffs is an Australian. The other is his wife. It was their child (an Australian citizen) that was to be the subject of the services. Indisputably, Australia has the most settled and stable legal system. In the circumstances, I consider that the closest and most real connection is with the a legal system in Australia. I consider that the law as applied in this State is the proper law. I should add that a brief supplementary submission was made relying on s 74 of the Trade Practices Act 1974 (Cth) (the Act). It was not fully argued. It may be that the submission is not open in the light of the manner in which the claim in contract is presently pleaded. There are statutory provisions which are commonly referred to as a "mandatory law". This can be found in inter alia consumer protection legislation (such as the Act). However, for present purposes, I need not pursue these considerations. 5. The authorities (including Henry v Henry (1996) 185 CLR 571) demonstrate that in dealing with an application for a stay, the stay should only be granted if the local court is a clearly inappropriate forum. I should digress to add that presently there is no application for a stay before the court. The defendant bears the onus of satisfying the court that this Court is a clearly inappropriate forum. In my view, it has failed to discharge that onus. To the extent that question 5 requires an answer in accordance with its terms, I consider the court to be an appropriate forum. ********** Last Modified: 09/02/2003 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.