CITATION: Yan Xie v Chen Shaoji [2008] NSWSC 224 HEARING DATE(S): 10 March 2008
JUDGMENT DATE :
17 March 2008JURISDICTION: 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 2005CATEGORY: 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 104PARTIES: 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 DIVISIONSimpson J
17 March 2008
JUDGMENT20501/06 Yan Xie & Anor v Chen Shaoji
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…
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- Case
- [2008] NSWSC 224
- Decision Date
CaseChat Overview and Summary
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.
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