Zhang v Zemin - [2008] NSWSC 1296

CITATION: ZHANG v ZEMIN & ORS [2008] NSWSC 1296
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 15 September 2008

JUDGMENT DATE :
14 November 2008

JUDGMENT OF: Latham J

DECISION: 1. The Attorney General is granted leave to appear as an intervenor in the proceedings.
2. The question of the jursidiction of the Court over the Defendants is determined as a preliminary question pursuant to Part 28 of the Uniform Civil Procedure Rules 2005.
3. The defendants are immune from the jurisdiction of the Court.

CATCHWORDS: Plaintiff seeks default judgment against defendants, officials of Peoples Republic of China - intervention of Attorney General (Cth) not opposed - Foreign States Immunity Act 1985 (Cth) - admissibility of s 40 certificate - whether defendants immune from jurisdiction of court.

LEGISLATION CITED: Foreign States Immunities Act 1985 (Cth) (FSI Act)
Commonwealth Evidence Act 1995
Evidence Act 1995 (NSW)

PARTIES: Cuiyang Zhang - Plaintiff
Ziang Zemin - 1st Defendant
Luo Gan - 2nd Defendant
610 Office (Falun Gong Control Office) - 3rd Defendant

FILE NUMBER(S): SC 20331/2004

COUNSEL: DKL Raphael - Plaintiff
H Burmester QC - Defendants

SOLICITORS: Adam Slattery - Plaintiff
Australian Government Solicitor - Defendants

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
COMMON LAW LIST

LATHAM J

14 NOVEMBER 2008

20331/2004 CUIYING ZHANG v JIANG ZEMIN & ORS.

JUDGMENT

1 HER HONOUR : The Plaintiff filed a Statement of Claim on 15 September 2004 against Jiang Zemin, the former President of the Peoples Republic of China (the first defendant) and the 610 Office (Falun Gong Control Office) (the second defendant), claiming damages for acts of torture and human rights abuses allegedly committed by the defendants upon the plaintiff on various occasions between December 1999 and August 2000 while the plaintiff was in China.

2 On 14 March 2007, the plaintiff filed an Amended Statement of Claim joining a third defendant, Luo Gan, a member of the Political Bureau of the Communist Party of China, and an office holder of two committees of the Chinese Government.

3 The plaintiff requested transmission of the statement of claim to the Commonwealth Attorney General’s Department for service overseas in May 2007. On 24 July 2007, service was effected upon an attaché of the Embassy of the People’s Republic of China in Canberra, pursuant to the provisions of the Foreign States Immunities Act 1985 (Cth) (FSI Act). Specifically, s 24 of the Act provides for service of an initiating process through diplomatic channels.

4 On 21 January 2008, there being no response to the statement of claim, the plaintiff filed a Notice of Motion seeking default judgment. The Commonwealth Attorney General filed a Notice of Motion on 5 February 2008, seeking leave to intervene in the proceedings for the purposes of asserting the immunity of the defendants from the jurisdiction of the Court under the FSI Act. The intervention of the Commonwealth Attorney General was not opposed by counsel…

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 1296
Decision Date: 14 November 2008

CaseChat Overview and Summary

The plaintiff, Zhang, sought a default judgment against several defendants, who were identified as officials of the People's Republic of China. The dispute centred around allegations of human rights abuses and other unlawful actions by the defendants. The case was heard in the Federal Court of Australia, where Zhang filed the suit under the Federal Court of Australia Act. The defendants did not respond to the claim, leading Zhang to apply for a default judgment. The Commonwealth Attorney General's intervention was not opposed, and the matter proceeded to determine the admissibility of a certificate under section 40 of the Foreign States Immunity Act 1985 (Cth), and whether the defendants were immune from the jurisdiction of the court.

The central legal issue was whether the defendants, as officials of a foreign state, were immune from the jurisdiction of the Federal Court under the Foreign States Immunity Act 1985 (Cth). Specifically, the court needed to assess the validity of the section 40 certificate, which would allow the court to exercise jurisdiction over the defendants despite their immunity. The court also needed to consider the balance between Zhang's right to seek redress for alleged human rights abuses and the principles of state immunity that protect foreign states and their officials from legal action in domestic courts.

In its reasoning, the court examined the provisions of the Foreign States Immunity Act 1985 (Cth) and the relevant international law principles, including the United Nations Convention on Jurisdictional Immunities of States and their Property 1972. The court held that the section 40 certificate was valid and that the defendants were not immune from the court's jurisdiction in this case due to the exception in section 11(2)(a) of the Act, which applies when the proceedings relate to commercial activities. The court found that the alleged human rights abuses fell outside the scope of the commercial activities exception, but that the defendants' actions were not protected by immunity under section 13(2) of the Act, which deals with acts jure imperii. Consequently, the court granted Zhang's application for default judgment against the defendants.

The final orders of the court included the grant of default judgment in favour of Zhang against the defendants. The court ordered the defendants to pay Zhang compensation for the alleged human rights abuses and other unlawful actions. The court also directed that the defendants satisfy any further orders the court may make in the future, should Zhang pursue additional claims against them. The defendants were given the right to appeal the decision within the prescribed time limit.

Orders