New South Wales
Court of Appeal
CITATION: Zhang v Zemin [2010] NSWCA 255 HEARING DATE(S): 28 June 2010
JUDGMENT DATE:
5 October 2010JUDGMENT OF: Spigelman CJ at 1; Allsop P at 157; McClellan CJ at CL at 174 DECISION: 1 Leave to appeal granted
2 Appeal dismissedCATCHWORDS: STATUTES - acts of parliament - interpretation - relevance of international law for interpretation of domestic statute - Foreign State Immunities Act 1985 (Cth) - JURISDICTION - immunity - Foreign State Immunities Act 1985 (Cth) s 9 - no exception for acts of torture contrary to international law - JURISDICTION - immunity - Foreign State Immunities Act 1985 (Cth) - immunity of individuals and former officers LEGISLATION CITED: Acts Interpretation Act 1901 (Cth)
Diplomatic Privileges and Immunities Act 1967 (Cth)
Foreign States Immunities Act 1985 (Cth)CASES CITED: Al-Adsani v United Kingdom (2002) 34 EHRR 111
Attorney-General (Queensland) v Riordan (1997) 192 CLR 1
Australian Federation of Islamic Councils Inc v Westpac Banking Corporation (1988) 17 NSWLR 623
Re Bolton; Ex parte Beane (1987) 162 CLR 514
Bouzari v Islamic Republic of Iran (2004) 71 OR (3d) 675
R v Bow Street Magistrate; Ex parte Pinochet (No 3) [2000] 1 AC 147
Bray v F Hoffman-La Roche Ltd [2002] FCA 243; (2002) 118 FCR 1
Chu Kheng Lim v The Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
Clyne v The New South Wales Bar Association (1960) 104 CLR 186
Cockle v Isaksen (1957) 99 CLR 155
Compania Naviera Vascongado v Steamship “Christina” [1938] AC 485
Corporate Affairs Commission v Bradley [1974] 1 NSWLR 391
Dole Food Company v Patrickson 123 S.Ct 1655; 538 US 468
Duff Development Co Ltd v Kelantan [1924] AC 797
Engelke v Musmann [1928] AC 433
Fang v Jiang [2007] NZAR 420
Federated Amalgamated Government Railway and Tramway Service Association v The NSW Railway Traffic Employees’ Association (1906) 4 CLR 488
Federated Engine Drivers and Firemen’s Association of Australasia v Broken Hill Pty Co Ltd (1911) 12 CLR 398
Grunfeld v United States of America [1968] 3 NSWLR 36
Hearne v Street [2008] HCA 36; (2008) 235 CLR 125
I Congreso del Partido [1980] 1 Lloyd’s Law Reports 23
I Congreso del Partido [1977] 1 Lloyd’s Law Reports 536
JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry [1989] 3 WLR 969; [1989] 1 Ch 72
Jones v Ministry of Interior of Saudi Arabia [2006] UKHL 26; [2007] 1 AC 270
Jones v Ministry of Interior of Saudi Arabia [2004] EWCA Civ 1394; [2005] 2 WLR 808
Juan Ysmael v Government of the Republic of Indonesian [1955] AC 72
Jumbunna Coal Mine NL v Victorian Coal Miners Association (1908) 6 CLR 309
Jurisdictional Immunities of the State (Germany v Italy) General List No 143, ICJ
Kalogeropoulou v Greece and Germany, Judgment on Admissibility 12 December 2002 (ECHR)
Kartinyeri v The Commonwealth (Hindmarsh Island Bridge…
Keep reading for free
Create a free CaseChat account to read Zhang v Zemin 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
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
Details
- Case
- [2010] NSWCA 255
- Decision Date
CaseChat Overview and Summary
The parties in this matter were Zhang (the applicant) and Zemin (the respondent). The dispute concerned the application of the *Foreign State Immunities Act 1985* (Cth) to acts of torture. The case was heard in the Court of Appeal of New South Wales.
The central legal issue before the court was whether the *Foreign State Immunities Act 1985* (Cth) provides an exception to foreign state immunity for acts of torture, notwithstanding the absence of an express provision to that effect in the Act. The court was also required to consider the relevance of international law in interpreting domestic statutes, particularly in the context of foreign state immunity.
The court's reasoning focused on the plain language of the *Foreign State Immunities Act 1985* (Cth). It was held that the Act comprehensively sets out the circumstances in which a foreign state is not immune from the jurisdiction of Australian courts. The court found no provision within the Act that created an exception for acts of torture, nor did it find that international law, in this context, could override the express provisions of the domestic statute. The court concluded that the Act did not permit the circumvention of foreign state immunity based on allegations of torture.
Leave to appeal was granted, but the appeal was ultimately dismissed.
The central legal issue before the court was whether the *Foreign State Immunities Act 1985* (Cth) provides an exception to foreign state immunity for acts of torture, notwithstanding the absence of an express provision to that effect in the Act. The court was also required to consider the relevance of international law in interpreting domestic statutes, particularly in the context of foreign state immunity.
The court's reasoning focused on the plain language of the *Foreign State Immunities Act 1985* (Cth). It was held that the Act comprehensively sets out the circumstances in which a foreign state is not immune from the jurisdiction of Australian courts. The court found no provision within the Act that created an exception for acts of torture, nor did it find that international law, in this context, could override the express provisions of the domestic statute. The court concluded that the Act did not permit the circumvention of foreign state immunity based on allegations of torture.
Leave to appeal was granted, but the appeal was ultimately dismissed.
Orders
Orders of the court
1 Leave to appeal granted
2 Appeal dismissed
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.