Commonwealth of Australia v Saratti Mills & Anor [2004] NSWSC 1042

Procedural Posture

Appeal in Common Law Division Concerning Private International Law and Choice of Law / Appeal From Answers Given by Master Malpass to Questions Put Pursuant to an Order Under Supreme Court Rules Part 31 R 2

Legal Issues

1. 1 ["Whether the plaintiffs' contractual cause of action was maintainable in the Supreme Court of New South Wales regardless of whether it would be maintainable in Cambodia." 'Whether the law of Cambodia or Australia should be applied to liability and quantum for the contractual claim.' 'Whether, in determining the proper law of the alleged contract, the Master erred by taking into account the later fact that the services were sought for the child and that Australia had a more settled and stable legal system.']

Ratio Decidendi

Assuming for present purposes that a contract existed, the contractual cause of action was maintainable because the defendant had submitted to the jurisdiction of the Supreme Court of New South Wales. On choice of law, the Master erred by considering factors not open on the closest and most real connection test, including the later fact that services were sought for one Australian child and the relative stability of Australia's legal system. The alleged contract was made in Cambodia for medical services to be rendered in Cambodia, one contracting party was Cambodian, the family, the child and Dr Dubow resided in Cambodia, and the undertaking was local in character. Those factors...

Court Disposition

The appeal was allowed in part.

Orders

• ['The appeal is allowed in part.' 'The answer to Q1 is confirmed.' 'The answer to Q4 is quashed, insofar as it relates to the contractual claim. In lieu thereof the following answer is given: The law of Cambodia should be applied to the issues of liability and quantum.' 'The Court will hear the parties as to costs.']