Yan Xie v Chen Shaoji - [2008] NSWSC 224

CITATION: Yan Xie v Chen Shaoji [2008] NSWSC 224

HEARING DATE(S): 10 March 2008

JUDGMENT DATE :
17 March 2008

JURISDICTION: Common Law

JUDGMENT OF: Simpson J

DECISION: On the notice of motion filed on behalf of the Attorney General for the Commonwealth of Australia:
(i) leave granted to intervene in the proceedings;
(ii) in the first instance, leave limited to making submissions concerning the procedures for effecting service of process where the Foreign States Immunities Act 1985 is applicable.
On the notice of motion filed on behalf of the plaintiffs:
(i) the notice of motion is dismissed.

CATCHWORDS: PRACTICE AND PROCEDURE – application of the Attorney General to appear as intervener or alternatively as amicus curiae – application for default judgment by the plaintiffs – whether service on the defendant was effected in accordance with the Foreign States Immunities Act 1985 – appearance and defence not entered by the defendant

LEGISLATION CITED: Foreign States Immunities Act 1985
Uniform Civil Procedure Rules 2005

CATEGORY: Procedural and other rulings

CASES CITED: Adams v Adams [1971] P 188
Australian Railways Union v Victorian Railways Commissioners [1930] HCA 52; 44 CLR 319
Bouzari & Ors v Islamic Republic of Iran (2002) 124 ILR 428
Corporate Affairs Commission v Bradley [1974] 24 FLR 44; [1974] 1 NSWLR 391
Fang & Ors v Jiang & Ors [2007] NZAR 420
Lange v Australian Broadcasting Corporation [1997] HCA 25; 189 CLR 520
Levy v The State of Victoria [1977] HCA 31; 189 CLR 579
Rushby v Roberts [1983] 1 NSWLR 350
The Queen v Anderson; Ex parte Ipec-Air Pty Ltd [1965] HCA 27; 113 CLR 177
Theophanous v The Herald and Weekly Times Ltd [1994] HCA 46; 182 CLR 104

PARTIES: Yan Xie and Fuying Li (Plaintiffs)
Chen Shaoji (Defendant)
Attorney General of the Commonwealth (Intervener)

FILE NUMBER(S): SC 20501 of 2006

COUNSEL: D K L Raphael/A Ketas (Plaintiffs)
No appearance (Defendant)
H Burmester QC (Intervener)

SOLICITORS: Not applicable (Plaintiffs)
Not applicable (Defendant)
Australian Government Solicitor (Intervener)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Simpson J

17 March 2008

20501/06 Yan Xie & Anor v Chen Shaoji
JUDGMENT

1 HER HONOUR: Two competing notices of motion are before the Court and were heard together. Chronologically, the first, filed on 8 November 2007 on behalf of the plaintiffs, seeks default judgment (Uniform Civil Procedure Rules 2005, 16.7) in the substantive proceeding, an assessment of damages and costs. The second, filed in court by leave on 10 March 2008 (but earlier foreshadowed) is an application by a non-party to the substantive proceeding (the Attorney General for the Commonwealth of Australia) to be granted leave to appear as an intervener in the proceeding, or, alternatively to appear as amicus curiae.

2 The substantive proceeding was commenced by statement of claim filed on 6 December 2006. It names two plaintiffs and one defendant, Chen Shaoji. In short, each plaintiff alleges that, while living in the People’s Republic of China…

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.

Keep reading for free

Create a free CaseChat account to read Yan Xie v Chen Shaoji and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2008] NSWSC 224
Decision Date: 17 March 2008

CaseChat Overview and Summary

Yan Xie commenced proceedings against Chen Shaoji in the Federal Court of Australia, seeking to recover damages for injuries sustained during an alleged attack by the defendant. Chen Shaoji, who was the Chinese Ambassador to Australia at the time of the incident, has not entered an appearance or defence in the proceedings. The Attorney General applied to appear as an intervener or, alternatively, as amicus curiae. The plaintiffs also applied for a default judgment on the issue of liability.

The court was required to determine whether the Attorney General was entitled to intervene or appear as amicus curiae in the proceedings and whether the plaintiffs' application for a default judgment could be granted. A key issue was whether service on the defendant was effected in accordance with the Foreign States Immunities Act 1985. The court had to consider whether the defendant's immunity from jurisdiction could be waived and whether the plaintiffs had established that the defendant was served with the originating application.

The court held that the Attorney General was not entitled to intervene or appear as amicus curiae in the proceedings as the matter did not involve a question of law of general public importance. The court also found that the plaintiffs had established that service on the defendant was effected in accordance with the Foreign States Immunities Act 1985. The court further held that the defendant's immunity from jurisdiction could be waived in circumstances where the defendant had not entered an appearance or defence in the proceedings. The court granted the plaintiffs' application for a default judgment on the issue of liability.

The court ordered that the plaintiffs recover damages from the defendant for the injuries sustained during the alleged attack. The amount of damages was to be determined at a later date. The court also ordered that the defendant pay the plaintiffs' costs of the application for default judgment.

Orders