Li v Zhou - [2014] NSWCA 176

Court of Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Li v Zhou [2014] NSWCA 176
Hearing dates: 28 March 2014
Decision date: 05 June 2014
Before: Bathurst CJ at [1];
Beazley P at [2];
Basten JA at [3]
Decision:
(1) Grant each applicant leave to appeal.
(2) Dismiss each appeal.
(3) Make no order as to the costs of the appeals.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:
JURISDICTION - civil - immunity of foreign state - submission to jurisdiction - accession by People's Republic of China to Torture Convention - whether conferral of universal civil jurisdiction by Art 14 - whether submission for purposes of Foreign States Immunities Act 1985 (Cth), s 10.
PUBLIC INTERNATIONAL LAW - effect of entry into treaty - submission to jurisdiction of domestic courts of other State Party - effect of accession to the Torture Convention - construction of Art 14 - whether Art 14 provides for universal civil jurisdiction - application of Vienna Convention, Arts 31 and 32
Legislation Cited:
1926 International Convention for the Unification of Certain Rules Relating to the Immunity of State-Owned Vessels, Arts 1, 2

Constitution, s 75

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Arts 4, 5, 10, 11, 12, 13, 14, 15, 16, 17, 19, 20, 27; Pt 1

Convention for the Protection of Human Rights and Fundamental Freedoms (EU), Art 6

Convention for the Unification of Certain Rules Relating to the Immunity of State-Owned Vessels, Arts 1, 2

Convention for the Unification of Certain Rules Relating to International Carriage by Air

Foreign States Immunities Act 1985 (Cth), ss 3, 9, 10, 11, 12, 13

International Convention on Civil Liability for Oil Pollution Damage, Art XI(2)

Judiciary Act 1903 (Cth), ss 56-64

Rome Statute of the International Criminal Court, Arts 7.1, 12.1

Uniform Civil Procedure Rules 2005 (NSW), r 51.22
Vienna Convention on the Law of Treaties (1969), Arts 31, 32, 53
Cases Cited: Al-Adsani v United Kingdom (2002) 34 EHRR 11
Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4; 190 CLR 225
Australian Competition and Consumer Commission v PT Garuda Indonesia (No 9) [2013] FCA 323; 212 FCR 406
Bouzari v Islamic Republic of Iran (2004) 71 OR (3d) 675 (Ont CA); 243 DLR (4th) 406
Commissioner of Internal Revenue v National Carbide Corp 167 F2d 304, (USCA, 2nd Cir, 1948)
Golder v United Kingdom (1975) 1 EHRR 524
Hashemi v Islamic Republic of Iran (2004) 71 OR (3d) 675; 243 DLR (4th) 406
Islamic Republic of Iran v Hashemi (2012) QCCA 1449; 354 DLR (4th) 385

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] NSWCA 176
Decision Date: 05 June 2014

CaseChat Overview and Summary

In this matter before the Court of Appeal of New South Wales, the applicants, Li and Zhou, sought to appeal against a decision concerning the civil immunity of a foreign state. The core of the dispute revolved around whether the People's Republic of China had submitted to the jurisdiction of Australian courts for the purposes of the *Foreign States Immunities Act 1985* (Cth) by acceding to the Torture Convention.

The legal issues before the Court were twofold: first, whether Article 14 of the Torture Convention confers universal civil jurisdiction on the domestic courts of State Parties; and second, if it does, whether this conferral constitutes a submission to jurisdiction for the purposes of section 10 of the *Foreign States Immunities Act 1985* (Cth). The Court was required to interpret the scope and effect of Article 14 in light of public international law principles, including the *Vienna Convention on the Law of Treaties*.

The Court reasoned that Article 14 of the Torture Convention does not establish universal civil jurisdiction. It found that the Convention's provisions, when interpreted according to the ordinary meaning of the terms in their context and in light of the object and purpose of the treaty, do not mandate or imply the creation of a civil jurisdiction for domestic courts to hear claims against foreign states. Consequently, the accession to the Convention by the People's Republic of China did not amount to a submission to the jurisdiction of Australian courts under the *Foreign States Immunities Act 1985* (Cth).

The Court of Appeal granted the applicants leave to appeal but ultimately dismissed each appeal, making no order as to the costs of the appeals.

Orders

Orders of the court

(1) Grant each applicant leave to appeal.

(2) Dismiss each appeal.

(3) Make no order as to the costs of the appeals.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Li v Zhou [2014] NSWCA 176
Hearing dates:	28 March 2014
Decision date:	05 June 2014
Before:	Bathurst CJ at [1]; Beazley P at [2]; Basten JA at [3]
Decision:	(1) Grant each applicant leave to appeal. (2) Dismiss each appeal. (3) Make no order as to the costs of the appeals. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	JURISDICTION - civil - immunity of foreign state - submission to jurisdiction - accession by People's Republic of China to Torture Convention - whether conferral of universal civil jurisdiction by Art 14 - whether submission for purposes of Foreign States Immunities Act 1985 (Cth), s 10. PUBLIC INTERNATIONAL LAW - effect of entry into treaty - submission to jurisdiction of domestic courts of other State Party - effect of accession to the Torture Convention - construction of Art 14 - whether Art 14 provides for universal civil jurisdiction - application of Vienna Convention, Arts 31 and 32
Legislation Cited:	1926 International Convention for the Unification of Certain Rules Relating to the Immunity of State-Owned Vessels, Arts 1, 2 Constitution, s 75 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Arts 4, 5, 10, 11, 12, 13, 14, 15, 16, 17, 19, 20, 27; Pt 1 Convention for the Protection of Human Rights and Fundamental Freedoms (EU), Art 6 Convention for the Unification of Certain Rules Relating to the Immunity of State-Owned Vessels, Arts 1, 2 Convention for the Unification of Certain Rules Relating to International Carriage by Air Foreign States Immunities Act 1985 (Cth), ss 3, 9, 10, 11, 12, 13 International Convention on Civil Liability for Oil Pollution Damage, Art XI(2) Judiciary Act 1903 (Cth), ss 56-64 Rome Statute of the International Criminal Court, Arts 7.1, 12.1 Uniform Civil Procedure Rules 2005 (NSW), r 51.22 Vienna Convention on the Law of Treaties (1969), Arts 31, 32, 53
Cases Cited:	Al-Adsani v United Kingdom (2002) 34 EHRR 11 Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4; 190 CLR 225 Australian Competition and Consumer Commission v PT Garuda Indonesia (No 9) [2013] FCA 323; 212 FCR 406 Bouzari v Islamic Republic of Iran (2004) 71 OR (3d) 675 (Ont CA); 243 DLR (4th) 406 Commissioner of Internal Revenue v National Carbide Corp 167 F2d 304, (USCA, 2nd Cir, 1948) Golder v United Kingdom (1975) 1 EHRR 524 Hashemi v Islamic Republic of Iran (2004) 71 OR (3d) 675; 243 DLR (4th) 406 Islamic Republic of Iran v Hashemi (2012) QCCA 1449; 354 DLR (4th) 385