Zie v Shaoji - [2008] NSWSC 279

CITATION: XIE & Anor v SHAOJI [2008] NSWSC 279
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 17 March 2008

JUDGMENT DATE :
19 March 2008

JURISDICTION: Common Law

JUDGMENT OF: Simpson J

DECISION: No order as to costs

CATCHWORDS: PRACTICE AND PROCEDURE - Plaintiffs' application for costs where the Attorney General sought to appear as intervener and limited leave granted - reliance placed on failure by the Australian Government Solicitor to provide particulars - failure to provide information concerning conditional appearance - obligation of the Commonwealth to act as a model litigant - no criticism of the Attorney General's conduct as litigant - no order as to costs.

LEGISLATION CITED: Foreign States Immunities Act 1985

CATEGORY: Procedural and other rulings

CASES CITED: Yan Xie v Chen Shaoji [2008] NSWSC 224

PARTIES: Yan Xie - (1st Plaintiff)
Yan Xie and Fuying Li - (Plaintiffs)
Chen Shaoji - (Defendant)

FILE NUMBER(S): SC 20501/06

COUNSEL: DKL Raphael/AM Ketas - (Plaintiff)
No appearance - (Defendant)
C Hutchins - (Intervener for Attorney General)

SOLICITORS: Not applicable - (Plaintiffs)
Not applicable - (Defendant)
Australina Government Solicitor - (Intervenor)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Simpson J

19 March 2008

20501/06 Yan Xie & Anor v Chen Shaoji
JUDGMENT – application for costs

1 HER HONOUR: On 17 March 2008, I delivered judgment on two notices of motion in these proceedings (Yan Xie v Chen Shaoji [2008] NSWSC 224). I allowed the Attorney General for the Commonwealth of Australia limited leave to intervene in the proceedings and dismissed a Notice of Motion filed on behalf of the plaintiffs.

2 The plaintiffs now seek an order for costs arising out of the application by the Attorney General to intervene. Their principal position is that the Attorney General ought to pay the costs in toto of those proceedings; alternatively, that the Attorney General ought to be ordered to pay a portion of the costs incurred by the plaintiffs.

3 The plaintiffs rely on some documentary material and some historical material. The historical material concerns earlier excursions in the matter that took place before McClellan CJ at CL on 26 November and 12 December 2007 when the question of intervention was raised.

4 I interpolate briefly that a matter which arose in the proceedings concerned the issue on consecutive occasions by consecutive Attorneys General of certificates under s 40 of the Foreign States Immunities Act 1985. The first certificate, to which I will refer as “the Downer Certificate”, is dated 15 November 2007, and was issued by the then Foreign Affairs Minister, Mr Alexander Downer. As I understand it, counsel for the plaintiffs challenged the validity of that certificate because of its asserted failure to specify the supporting facts and matters giving rise to the conclusions stated therein.

5 Probably as a precautionary measure, the new Minister for Foreign Affairs, Mr Stephen Smith, issued a fresh certificate which did…

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 279
Decision Date: 19 March 2008

CaseChat Overview and Summary

The matter of Zie v Shaoji involved proceedings where the plaintiff sought an order for costs against the defendant. The case was heard in the Federal Court of Australia. The dispute centred on whether the Attorney General was entitled to intervene in the proceedings as an intervener and, if so, whether the plaintiff was entitled to costs from the Attorney General.

The court was required to determine whether the Attorney General had the right to intervene and, if so, whether the plaintiff's application for costs should be granted. The plaintiff argued that the Attorney General's failure to provide particulars and information concerning a conditional appearance warranted an order for costs. The court had to weigh the plaintiff's arguments against the obligation of the Commonwealth to act as a model litigant and consider any potential criticism of the Attorney General's conduct.

The court found that while the Attorney General had the right to intervene, there was no basis to criticise the conduct of the Attorney General as a litigant. The court noted that the failure to provide particulars and information concerning the conditional appearance was not a basis for an order of costs. Consequently, the court limited the leave for the plaintiff to proceed with their application for costs against the Attorney General. The court did not make any order as to costs in this matter.

Orders