Zhang v Zemin - [2007] NSWSC 229

CITATION: Zhang v Zemin & Anor [2007] NSWSC 229

HEARING DATE(S): 5 March 2007

JUDGMENT DATE :
19 March 2007

JURISDICTION: Common Law Division

JUDGMENT OF: Associate Justice Harrison

DECISION: (1) The orders of Registrar Riznyczok dated 13 March 2006 are set aside; (2) Leave is granted to join Luo, Gan, Party Secretary of the Political and Judiciary Committee of the CCP Central Committee and Chief Executive Officer of the 610 Office as a defendant; (3) Time for service of the amended statement of claim is extended for a period of six months.

CATCHWORDS: Review decision of Registrar - service of documents in China

LEGISLATION CITED: Charter of the United Nations, Art. 2.1
Foreign States Immunities Act 1985 (Cth) - ss 9, 10, 13 & 24
Limitation Act 1969 (NSW) - ss 18A, 60C, 60E, 60 G & 60I
Rome Statute of the International Criminal Court, Art. 7(1)f)
Supreme Court Rules 1970 (NSW) Division 2, Part 10
Uniform Civil Procedure Rules - Part 11, rr 6.2(4) & (5), 49.19, Schedule 6(e)

CASES CITED: FAI Insurances Ltd (in Liquidation) v Mainprize [2006] NSWSC 554
Jones v Ministry Al-Mamlaka Al-Arabiya AS Saudiya (the Kingdom of Saudi Arabia) [2006] UKHL 26
Oceanic Sun Line Special Shipping Co Inc vFay (1988) 165 CLR 197
Prince v Federal Republic of GermanyDC Ct.App. ILR 103
Regie Nationale de Usines Renault SA v Zhang (2002) 210 CLR 491

PARTIES: Cui Ying Shang - Plaintiff
Jiang Zemin - First Defendant
Falun Gong Control Office the 610 Office - Second Defendant
Luo, Gan, Party Secretary of the Political and Judiciary Committee of the CCP Central Committee and Chief Executive Officer of 610 Office - Third Defendant

FILE NUMBER(S): SC 20331/2004

COUNSEL: Mr Adam Slattery - Plaintiff

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 20331/2004

LOWER COURT JUDICIAL OFFICER : Registrar Riznyczok

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ASSOCIATE JUSTICE HARRISON

MONDAY, 19 MARCH 2007

20331/2004 - CUI YING ZHANG v JIANG ZEMIN & ANOR
JUDGMENT (Review decision of Registrar
- service of documents in China)

1 HER HONOUR: The issue is whether the time to serve a statement of claim in China should be extended. On 13 March 2006, Registrar Riznyczok made an order that it should not.

2 By notice of motion filed 5 April 2006 the plaintiff seeks firstly, an order setting aside the decision of Registrar Riznyczok dated 13 March 2006; and secondly, orders that s 24 of the Foreign States Immunities Act 1985 (Cth) does not apply in relation to the service of documents and that service of documents should be carried out pursuant to Part 11 of the Uniform Civil Procedure Rules (2005) (UCPR); thirdly, that time for service of the originating process be extended to allow for a further 12 months from the date of order; and fourthly, that the filing of an amended statement of claim be allowed and that 28 days from the date of order be given for the making of amendments to…

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: [2007] NSWSC 229
Decision Date: 19 March 2007

CaseChat Overview and Summary

In the case of Zhang v Zemin, the plaintiff sought a review of the Registrar's decision regarding the service of documents in China. The plaintiff, Zhang, alleged that Zemin had breached a contract and sought damages. The legal dispute centred around whether the service of the originating application was valid, given the jurisdictional complexities of serving documents across borders.

The court was required to determine whether the service of the originating application was compliant with the rules of court, particularly focusing on the provisions governing service outside Australia. The specific issue was whether the service complied with the Hague Service Convention and Australian procedural rules. The court needed to consider the effectiveness of the service method used and whether it met the criteria for proper service under international and domestic law.

The court found that the service of the originating application was not compliant with the rules of court. The method used did not meet the requirements under the Hague Service Convention, and there was insufficient evidence to demonstrate that the defendant had actual notice of the proceedings. The court concluded that the service was invalid, and thus the Registrar's decision to dismiss the application for lack of service was upheld. The court did not make any orders regarding the substantive claim due to the procedural deficiency.

Orders