Li v Zhou - [2013] NSWSC 12

Supreme Court

New South Wales

Medium Neutral Citation: Li v Zhou [2013] NSWSC 12
Hearing dates: 19 November 2012
Decision date: 25 January 2013
Before: McCallum J
Decision:
Plaintiffs' application to have default judgment entered dismissed; proceedings dismissed.

Catchwords: JURISDICTION - immunity - Foreign States Immunities Act 1985 (Cth) s 10 - whether first defendant has submitted to jurisdiction by agreement - requirement for agreement to be express or clearly implied - whether Convention Against Torture Art 14 clearly implies agreement to submit to jurisdiction
Legislation Cited: Foreign States Immunities Act 1985 (Cth)
Cases Cited: Jones v Saudi Arabia [2007] 1 AC 270
Pan v Bo [2008] NSWSC 961
Yan Xie v Chen Shaoji [2008] NSWSC 224
Zhang v Zemin [2008] NSWSC 1296
Zhang v Zemin [2010] NSWCA 255; (2010) 79 NSWLR 513
Texts Cited: Australian Law Reform Commission Report 24 on Foreign State Immunity (1984)
Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, New York, 10 December 1984
Category: Principal judgment
Parties: Jie Lin Li (first plaintiff)
Jing Xiao Chen (second plaintiff)
Chang Zhi Yue (third plaintiff)
Yong Kang Zhou (first defendant)
Attorney-General of the Commonwealth (second defendant)
Representation: Counsel:
R Dubler SC, R White (plaintiffs)
H Burmester QC (second defendant)
Solicitors:
Gibson Lawyers (plaintiffs)
Australian Government Solicitor (second defendant)

File Number(s): 2008/288056

Judgment

HER HONOUR: These proceedings raise an interesting question as to the jurisdiction of this Court to determine claims for damages arising from assaults allegedly committed by government officials in the People's Republic of China. The plaintiffs are three Chinese nationals, now residents of Australia. Each claims whilst in China to have been arrested, detained and subjected to persistent physical and mental persecution by reason of their having been practitioners of Falun Gong. By these proceedings, they seek damages for ongoing injuries and disabilities arising from that conduct. Relevantly for that purpose, the plaintiffs allege that the conduct giving rise to their claims amounted to torture under international law.

The first defendant, Yong Kang Zhou, is sued in his capacity as former secretary of the Chinese Communist Party of Sichuan Province, the Minister of Public Security of the People's Republic of China and head of the Central Political and Legislative Committee. It is alleged that, in those capacities, he planned and ordered the systematic arrest, interrogation, detention and torture of Falun Gong practitioners.

The proceedings were commenced by statement of claim filed on 7 December 2009. The statement of claim has been served on Yong Kang Zhou in accordance with s 24 of the Foreign States Immunities Act 1985 (Cth). He has not entered an appearance in the proceedings and the plaintiffs now seek default judgment against him. This judgment determines that application.

At the outset of the hearing, the Attorney-General of the Commonwealth was granted leave to intervene in the proceedings, as she is entitled to be in cases of this kind: see Yan Xie v Chen Shaoji [2008] NSWSC 224 at [7]-[34]; Pan v Bo [2008] NSWSC 961

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: [2013] NSWSC 12
Decision Date: 25 January 2013

CaseChat Overview and Summary

The case of Li v Zhou involved the plaintiff, Li, suing the first defendant, Zhou, who is a foreign state diplomat, and the second defendant, a private citizen, for alleged breaches of international law, including torture and unlawful imprisonment. The dispute came before the Federal Court of Australia, where the primary issue was whether the first defendant had submitted to the jurisdiction of the Australian courts by virtue of an agreement under the Foreign States Immunities Act 1985. Specifically, the court needed to determine whether any agreement to submit to jurisdiction must be express or if a clearly implied agreement, such as that found in Article 14 of the Convention Against Torture, would suffice.

The court considered whether the Convention Against Torture, which obligates signatory states to establish jurisdiction over acts of torture, could be construed as an implied agreement for the first defendant to submit to the jurisdiction of Australian courts. The court held that any submission to jurisdiction by a state must be express and not merely implied. The court found that the Convention Against Torture, while it imposed obligations on states, did not include an express or clearly implied waiver of immunity from jurisdiction in respect of private civil suits in foreign courts. Therefore, the first defendant had not submitted to the jurisdiction of the Australian courts.

Consequently, the court dismissed the action against the first defendant on the grounds of state immunity. The court did not need to address the claims against the second defendant, as the immunity of the first defendant was determinative of the case. The plaintiff's claims against the first defendant were dismissed, and no orders were made in respect of the second defendant.

Orders