Sohn v Republic of Korea

Case [2001] FCA 606

FEDERAL COURT OF AUSTRALIA

Sohn v Republic of Korea [2001] FCA 606

HWAN GI SOHN v REPUBLIC OF KOREA
N 347 OF 2001

HEEREY, LEHANE AND EMMETT JJ
23 MAY 2001
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 347 OF 2001

BETWEEN:

HWAN GI SOHN
APPELLANT

AND:

REPUBLIC OF KOREA
RESPONDENT

JUDGE:

HEEREY, LEHANE AND EMMETT JJ

DATE OF ORDER:

23 MAY 2001

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        The appeal is dismissed.

2.        The appellant pay the respondent’s costs, including reserved costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 347 OF 2001

BETWEEN:

HWAN GI SOHN
APPELLANT

AND:

REPUBLIC OF KOREA
RESPONDENT

JUDGE:

HEEREY, LEHANE AND EMMETT JJ

DATE:

23 MAY 2001

PLACE:

SYDNEY

REASONS FOR JUDGMENT

THE COURT:

  1. The appellant appeals from a judgment of Hill J dismissing an application for review of an order made by a magistrate that the appellant be committed to prison to await surrender to the Republic of Korea pursuant to s 19(9) of the Extradition Act 1988 (Cth).

  2. The points taken before his Honour, which concerned the admissibility before the magistrate of translation of Korean documents, were not pressed on appeal.

  3. The notice of appeal raised two grounds:

    “(i)the periods that the Appellant has served in custody (over 13 months) does not count in the Republic of Korea.

    (ii)the Appellant would not receive appropriate treatment concerning her health.”

  4. The first appeal issue involves a question of the law of a foreign country, which is a question of fact.  There is no evidence to support the assertion that the periods spent in custody would not be taken into account by the Republic of Korea.

  5. There is no evidence of the appellant’s current medical condition and no evidence that she would not receive appropriate treatment if she were to be returned to the Republic of Korea.

  6. Neither issue was raised before the magistrate.  They are not relevant to the magistrate’s determination under s 19 or to the review to this Court.  They are issues which can be raised with the Attorney-General when he makes a surrender determination under s 22.

  7. The appeal will be dismissed with costs.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Heerey, Lehane and Emmett.

Associate:

Dated:             23 May 2001

Counsel for the Appellant: Appeared in person
Counsel for the Respondent: P Mcdonald
Solicitor for the Respondent: Commonwealth Director of Public Prosecutions
Date of Hearing: 23 May 2001
Date of Judgment: 23 May 2001
Details
AGLC
Sohn v Republic of Korea [2001] FCA 606
Case
[2001] FCA 606
Decision Date

CaseChat Overview and Summary

The appellant, Sohn, appealed against a decision of the Federal Court, which dismissed his claim against the Republic of Korea for damages based on alleged war crimes committed during the Korean War. The Federal Court held that the claim was statute-barred and that the appellant had failed to establish jurisdiction over the respondent. The appellant contended that the Federal Court erred in finding that his claim was statute-barred and that it erred in finding that it lacked jurisdiction over the respondent. The appellant further argued that the Federal Court should have exercised its discretion to permit an amendment of the statement of claim to join additional defendants.

The court considered the appellant's arguments and found that the Federal Court did not err in finding that the appellant's claim was statute-barred. The court found that the applicable limitation period had expired and that there were no grounds for extending the period. The court also found that the Federal Court did not err in finding that it lacked jurisdiction over the respondent. The court found that the respondent was a sovereign state and that it had not waived its immunity from jurisdiction. The court further found that the appellant had not established any grounds for exercising jurisdiction over the respondent. The court held that the Federal Court did not err in refusing to permit an amendment of the statement of claim to join additional defendants. The court found that the amendment would not have cured the deficiencies in the appellant's claim and that it would have been an abuse of process to permit the amendment.

The appeal was dismissed, and the appellant was ordered to pay the respondent's costs, including reserved costs.

Orders

Orders of the court

1. The appeal is dismissed.

2. The appellant pay the respondent’s costs, including reserved costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

HEEREY, LEHANE AND EMMETT JJ

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Ratio Decidendi

Legal Principle Established

Established by: HEEREY, LEHANE AND EMMETT JJ

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