Mills & Anor v Commonwealth of Australia [2003] NSWSC 794

Mills & Anor v Commonwealth of Australia [2003] NSWSC 794

The expert evidence on Cambodian law was unreliable and did not enable a definitive conclusion that the pleaded causes of action were not maintainable in Cambodia, so the defendant failed to establish that the claims should be struck out. Cambodian law governs tortious liability as the lex loci delicti, but the quantum issue for the foreign tort was reserved. The alleged contract had its closest and most real connection with the legal system applied in New South Wales, having regard to the Australian Government, Embassy clinic, Australian doctor, Australian plaintiff and Australian citizen child. The defendant did not prove that the Supreme Court of New South Wales was a clearly...

Jurisdiction
Australia
Judgment Date
29 August 2003
Procedural Posture
Claims in Contract and Tort for Nervous Shock / Separate Determination of Questions After Removal From the District Court to the Supreme Court of New South Wales
Outcome
Separate questions answered: tortious claim not maintainable in New South Wales regardless of Cambodian maintainability, contractual claim maintainable; no definitive answer on Cambodian maintainability but not satisfied the claims are not maintainable; claims not struck out; Cambodian law applies to tort liability,...
Legal Topics
['nervous Shock' 'foreign Law' 'lex Loci Delicti' 'proper Law of Contract' 'clearly Inappropriate Forum' 'expert Evidence']
['tort Law' 'contract Law' 'private International Law' 'civil Procedure' 'evidence'] ['nervous Shock' 'foreign Law' 'lex Loci Delicti' 'proper Law of Contract' 'clearly Inappropriate Forum' 'expert Evidence']

Case Brief

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Procedural Posture

Claims in Contract and Tort for Nervous Shock / Separate Determination of Questions After Removal From the District Court to the Supreme Court of New South Wales

Legal Issues

  1. 1 ["Whether the plaintiffs' causes of action are maintainable in the Supreme Court of New South Wales regardless of whether they would be maintainable in Cambodia." "Whether the plaintiffs' causes of action are maintainable in Cambodia." "Whether the plaintiffs' causes of action should be struck out." 'Whether Cambodian or Australian law applies to liability and quantum.' 'Whether the Supreme Court of New South Wales is an appropriate forum to hear the claims.']

Ratio Decidendi

The expert evidence on Cambodian law was unreliable and did not enable a definitive conclusion that the pleaded causes of action were not maintainable in Cambodia, so the defendant failed to establish that the claims should be struck out. Cambodian law governs tortious liability as the lex loci delicti, but the quantum issue for the foreign tort was reserved. The alleged contract had its closest and most real connection with the legal system applied in New South Wales, having regard to the Australian Government, Embassy clinic, Australian doctor, Australian plaintiff and Australian citizen child. The defendant did not prove that the Supreme Court of New South Wales was a clearly...

Court Disposition

Separate questions answered: tortious claim not maintainable in New South Wales regardless of Cambodian maintainability, contractual claim maintainable; no definitive answer on Cambodian maintainability but not satisfied the claims are not maintainable; claims not struck out; Cambodian law applies to tort liability,...

Orders

  • ['Question 1 answered no for the tortious claim and yes for the contractual claim.' 'Question 2 could not be answered definitively; the Court was not satisfied that the causes of action were not maintainable in Cambodia.' 'Question 3 answered by refusing to strike out the causes of action.' 'Question 4 answered that...