Pan v Bo - [2008] NSWSC 961

Reported Decision:
220 FLR 271

New South Wales

Supreme Court

CITATION: Pan v Bo [2008] NSWSC 961

HEARING DATE(S): 22/05/2008; 23/05/2008

JUDGMENT DATE :
25 September 2008

JURISDICTION: Common Law

JUDGMENT OF: McCallum J

DECISION: 1. That the Attorney-General be granted leave to appear as an intervener in the proceeding.
2. That the default judgment entered on 7 November 2007 be set aside.

CATCHWORDS: Leave sought by Attorney-General of the Comonwealth to appear in proceedings as intervener - if sucessful, application to set aside default judgment - circumstances in which intervention is permitted - whether service effective under the Foreign States Immunities Act 1985 (Cth) - default judgment obtained illegally or irregularly

LEGISLATION CITED: Foreign States Immunities Act 1985 (Cth)

CATEGORY: Procedural and other rulings

CASES CITED: Levy v State of Victoria [1997] HCA 31; 189 CLR 579
Yan Xie v Chen Shaoji [2008] NSWSC 224

PARTIES: Yu Pan (Plaintiff)
Xilai Bo (Defendant)
Attorney-General of the Commonwealth (Intervener)

FILE NUMBER(S): SC 11474/06

COUNSEL: B Adam (Plaintiff)
C Hutchins (Sol) (Intervener)

SOLICITORS: Australian Government Solicitor (Intervener)

LOWER COURT FILE NUMBER(S): 11474/06

- 10 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

McCALLUM J

25 SEPTEMBER 2008

11474/06 YU PAN v XILAI BO

JUDGMENT

1 HER HONOUR: The plaintiff is a Falun Gong practitioner from the People’s Republic of China. He claims that he was arrested in Beijing in early 2000 because of his beliefs and that he was detained and tortured for nearly 5 months. He says that, after his release, police and local communist party staff continued to harass him and to monitor his movements.

2 The plaintiff came to Australia in April 2001 and is now an Australian citizen. He commenced these proceedings against the Minister of Commerce of the People’s Republic of China seeking damages for wrongful arrest, battery and false imprisonment in respect of his claims. He contends that the defendant is vicariously liable for the acts alleged.

3 The defendant was part of a Chinese delegation visiting Australia in September 2007. The plaintiff took that opportunity to have the statement of claim served on the defendant personally in Canberra. Default judgment was entered in favour of the plaintiff on 7 November 2007.

4 The motion before the Court raises the issue whether the default judgment should be set aside, not on the application of the defendant (who has never entered an appearance in the proceedings) but on the application of the Attorney-General of the Commonwealth, who seeks leave to appear as an intervener in the proceeding.

5 The Attorney-General says that the judgment should be set aside because the defendant is a foreign State within the meaning of the Foreign States Immunities Act 1985 (Cth) and service of the statement of claim was not effected in accordance with the requirements of that Act.

Circumstances in which the default judgment was entered

6 The proceedings were commenced by summons on 31 March 2006. The plaintiff initially sought to effect service…

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: [2008] NSWSC 961
Decision Date: 25 September 2008

CaseChat Overview and Summary

The case of Pan v Bo involves an application by the Attorney-General of the Commonwealth to intervene in proceedings between Pan, the plaintiff, and Bo, the defendant. The dispute centres around whether the Attorney-General is permitted to intervene in the matter, the effectiveness of service under the Foreign States Immunities Act 1985 (Cth), and the legality and regularity of the default judgment obtained by Pan against Bo. The matter was heard in the Federal Court of Australia.

The central legal issues the court needed to address were whether the Attorney-General had a sufficient interest in the proceedings to justify intervention and whether the service of the proceedings on Bo was effective. Additionally, the court had to determine whether the default judgment obtained by Pan was obtained illegally or irregularly, potentially rendering it void. The court considered the statutory provisions of the Foreign States Immunities Act and relevant case law to resolve these issues.

In its reasoning, the court first examined the statutory framework provided by the Foreign States Immunities Act, which governs the immunity of foreign states and their property from legal process. The court found that Bo, as a representative of a foreign state, was entitled to immunity from the jurisdiction of Australian courts unless the proceedings fell within an exception provided by the Act. The court determined that the service of the proceedings on Bo was ineffective due to his immunity, which led to the nullification of the default judgment. Consequently, the court concluded that the default judgment was obtained illegally or irregularly and ordered that it be set aside. This decision ensures that the legal protections afforded to foreign states under the Act are upheld.

The final orders of the court were to grant the Attorney-General's application to intervene in the proceedings, to set aside the default judgment obtained by Pan against Bo, and to determine that the service of the proceedings on Bo was ineffective. The court's decision underscores the importance of adhering to the provisions of the Foreign States Immunities Act and the necessity of proper service to maintain the integrity of the judicial process.

Orders