Fang v Jiang HC Auckland CIV 2004-404-5843

[2005] NZHC 1253

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2004-404-5843

BETWEEN  SAM FANG

First Plaintiff

AND  YIQING (JANET) GAO

Second Plaintiff

AND  WEIGUO ZHU

Third Plaintiff

AND  LEO LIAN

Fourth Plaintiff

AND  JINGFANG YU

Fifth Plaintiff

AND  FENGYING WEI

Sixth Plaintiff

AND  CHUNYAN CHEN

Seventh Plaintiff

AND  JINMEI DOU

Eighth Plaintiff

AND  FENG CHEN

Ninth Plaintiff

AND  YUJIE PEI

Tenth Plaintiff

AND  JENNY LEE

Eleventh Plaintiff

AND  ZEMIN JIANG

First Defendant

AND  LANQING LI

Second Defendant

AND  GAN LUO

Third Defendant

Hearing:            30 January 2005 Appearances:         C Lawrence for plaintiffs Judgment:    3 February 2005 at 15:15

JUDGMENT OF ASSOCIATE JUDGE FAIRE

[on ex parte application to serve notice of proceeding and statement of claim]

Fang And Ors V Jiang And Ors HC AK CIV 2004-404-5843 3 February 2005

[1]    The plaintiffs apply pursuant to r 8 for a direction that they are entitled to serve a notice of proceeding and statement of claim in this proceeding out of New Zealand without leave under r 219(a) of the High Court Rules. The application was made ex parte.

[2]    Counsel’s memorandum in support sets out the basis for, and the background, the claim.

1.This proceeding was filed on 22 October 2004. It has been commenced by eleven New Zealand-based practitioners of Falun Gong in respect of their alleged mistreatment, in the Peoples’ Republic of China, as part of the PRC government’s crackdown on Falun Gong.

(Falun Gong ("The Wheel of Law") is a modern version of ancient Buddhist-derived self-cultivation techniques. It involves the regular practice of a number of exercises and continuous adherence to the principles of Truth, Forbearance and Compassion. Its purpose is to develop the mind, body and spirit to higher levels of health and ethics.)

2.A few of the plaintiffs were New Zealand residents or  citizens before the events of which they complain. Many of the others have since come to New Zealand as refugees and have been granted, or are in the process of being granted, official refugee status.

3.The plaintiffs all allege that, merely because they were Falun Gong practitioners, they were arrested and imprisoned by the PRC authorities. Some of them say that this happened to them numerous times. Some were detained for as long as eighteen months.

4.Most of the plaintiffs also allege that they were subjected to varying degrees of torture, ranging from serious to extreme. Some of them also allege that they were subjected to intense "brainwashing". As a result of this mistreatment, a number of the plaintiffs were coerced into renouncing their commitment to Falun Gong.

5.Those who were tortured suffered various physical injuries as a result. But all the plaintiffs also suffered serious mental and psychological injuries. Generally, the trauma-related mental harm is typical of torture victims. But for those who succumbed to torture and brainwashing and signed "regret letters" and other documents of recantation, the harm has additional aspects unique to the circumstances of the case. The mental harm is ongoing and in some cases chronic.

6.The defendants are the three most senior officials alleged to have been responsible for the campaign against Falun Gong. At relevant

times they each held a number of different offices. Amongst other positions, the first and second defendants were, respectively, the retired President and Vice-President of the PRC. The third defendant was a member of the Politburo and Chair of the Central Committee’s Political and Judiciary Committee. The second and third defendants were also, respectively Leader and Deputy-Leader of the "Leadership Team for Dealing with the Falun Gong Problem".

7.The essence of the claim against the first defendant is that he personally ordered the campaign of suppression against Falun Gong practitioners. As against the second and third defendants, the gravamen of the claim is that they led the "Leadership Team" which designed that campaign and which supervised its implementation by the so-called "610 Office" (which they established to carry out the campaign against Falun Gong). The defendants are alleged to be vicariously liable for the actions of those who actually arrested, imprisoned and tortured the plaintiffs.

8.It is alleged that the actions the subject of this suit were unlawful according to the law of the PRC.

[3]    Mr Lawrence noted that the proceedings will need to be served on the defendants in China. He said that the question is whether that can be done as of right or whether the plaintiffs need the leave of the Court to serve the proceedings overseas. In short, the issue is whether the case is one for which r 219 or r 220 applies.

[4]    He submitted that the only paragraph in r 219 which might be applicable and which, he submitted, was applicable is paragraph (a). The relevant parts of that Rule then are as follows:

Where in any proceeding a statement of claim or counterclaim and the relevant notice of proceeding or third party notice cannot be served in New Zealand under these Rules, they may be served out of New Zealand without leave in the following cases:

(a) where any act or omission for or in respect of which damages are  claimed was done or occurred in New Zealand"

[5]    It appears from the pleading that the causes of action, in each case, occurred in China. The only connection with New Zealand is that the plaintiffs now reside in New Zealand and, as Mr Lawrence submitted,

continue to suffer in New Zealand serious trauma.

[6]He added:

In some cases where a plaintiff has been admitted to refugee status, the type of harm has actually arisen here.

[7]    The causes of action are all in tort. The statement of claim alleges wrongful arrest, false imprisonment, assault and battery, misfeasance in public office and conspiracy.

[8]    A consideration of the intent of r 219 indicates that its purpose is to allow proceedings to be served out of the jurisdiction without leave if there is a reasonable link or connection between the proceedings and New Zealand.

[9]    Mr Lawrence could not find any specific authority which was on all fours with the situation that applies in the instant case. The immediate problem that  I see is that, at most, the connection with New Zealand is in the ascertainment of and the quantification of the damages. There is no question of any element of the cause of action arising in this country.

[10]   Rule 219(a) requires the following before proceedings can be served without leave, namely:

a)An act or omission done or occurred;

b)In New Zealand;

c)For, or in respect of which, damages are claimed.

[11]   With the exception of Brix-Neilsen v Oceaneering Australia Pty Ltd (1982) 2 NSWLR 173, Mr Lawrence could locate no case where the cause of action pleaded was in tort and where it arose out of New Zealand and where the only connection with New Zealand is the ascertainment or quantification of damage, where proceedings were held to be able to be served without leave.

[12]   The Brix-Neilsen v Australia Pty Ltd case deals with an entirely different situation and a rule that is worded in language different to the New Zealand rule. It relates to the position that applies inter-state in Australia. The specific rule provides that an originating process may be served outside the state:

… where the proceedings are founded on or are for the recovery of, damages suffered wholly or partly in the state caused by a tortious act or omission wherever occurring …

It will be apparent from that rule that there is no need to find a specific act or omission for or in respect of which damages are claimed as having occurred in the state where the proceeding is issued. All that is required is the suffering of damage wholly or partly in the state where the proceeding is issued. For that reason, the case is of no assistance in the determination of this application.

[13]Mr Lawrence referred me to Longbeach Holdings Ltd v Bhanabhai & Co Ltd

[1994] 2 NZLR 28 (CA) and Biddulph v Wyeth Australia Pty Ltd [1994] 3 NZLR 49.

[14]   In Longbeach Holdings Ltd v Bhanabhai the Court of Appeal dealt with a case where the primary cause of action involved breach of contract. The Court  found that the contract had been entered into in Christchurch, New Zealand with the result that the application could be dealt with under r 219(b)(1) of the High Court Rules. The Court, however, also considered the position under r 219(a). At 34 the Court said:

it is sufficient under it that the damage was sustained rather than that the tortious act occurred within the jurisdiction. Our para (a) requires that the act or omission occur in New Zealand, and it may be that the words "or in respect of" serve to emphasise that it is enough if any part of the cause of action arose in this country. In a claim in tort, that would include the suffering of damage. The additional words may therefore do no more than confirm decisions under the earlier R 48(a): in Adastra, that the suffering of damage was enough (see p 395), and in My v Toyota Motor Co Ltd [1977] 2 NZLR 113, that delivery in New Zealand of a defective vehicle manufactured overseas would suffice.

[15]   The Court of Appeal judgment concludes that the Rule will apply if the proceeding is in tort, if any part of the cause of action arises in New Zealand. That is because the matter that arises in New Zealand as part of the cause of action is the act or omission which founds the right to bring the claim for damages in New Zealand. In this way, the requirements for the operation of r 219(a) are met.

[16]   In Adastra Aviation Ltd v Airparts (NZ) Ltd [1964] NZLR 393 Hardie Boys held that the predecessor to r 219(a), that is r 48(a), applied to a case where there is delivery in New Zealand of a defective machine resulting in damage to a plaintiff in

New Zealand. That is because the suffering of damage itself may qualify as an act done in New Zealand on the footing that the damage is the foundation of the tortious liability: 395.

[17]   In My v Toyota Motor Co Ltd [1977] 2 NZLR 113 Wild CJ concluded that the delivery of the defective vehicle in New Zealand was part of the essential ingredients of the cause of action and, for that reasons, the case fell within r 48(a) of the Code of Civil Procedure.

[18]   In the second case cited by Mr Lawrence, Biddulph v Wyeth Australia Pty Ltd, Eichelbaum CJ dealt with a different issue from those specifically raised in this case. Nevertheless, he observed that:

the rule should be read as requiring only the happening in New Zealand of acts for or in respect of which damages are claimed, regardless whose act is in question. This supplies the element of territoriality. The necessary linkage with the defendant must occur as part of the cause of action.

[19]   Where damage is an essential element of a cause of action, the suffering of some damage in circumstances where the other elements of the cause of action have already occurred in fact constitutes the basis for the cause of action: Jobbins v Capel Court Corporation Ltd (1989) 91 ALR 314 at 317 and Khan v Salvey [2002] 1 Lloyd’s Rep 369 at 371.

[20]   The issue raised in this case is whether the proceeding can be issued pursuant to r 219(a) without leave where all the elements of the cause of action in tort have occurred outside New Zealand and where the only connection with New Zealand is the ascertain of damage and its quantification. The conclusion I reach is that in this situation there is no act or omission which has occurred in New Zealand which gives rise to a claim for damages made in the proceeding. That conclusion is consistent with the analysis of the Rule which I have referred to in paragraph 10 hereof. It is also consistent with the analysis of this Rule and its predecessor in the authorities to which I have made reference. Further, it is consistent with the general purpose of the Rule, namely that proceedings issued in New Zealand would be permitted without leave if there is a reasonable link or connection between the proceedings in New

Zealand.     There is no such link where the cause of action arises in another jurisdiction.

Result

[21]   Accordingly, I rule that r 219(a) does not apply. Mr Lawrence did not seek any further ruling from me. He indicated that a further application, accompanied by amended proceedings, might well be filed so that the matter could, in due course, be considered under r 220. So that this proceeding is not left to languish, I direct that it be placed in the chambers list at 2.15pm on 23 February 2005 for the purpose of reviewing whether leave to serve out of the jurisdiction should be granted.

JA Faire Associate Judge

Solicitors: Jeremy Bioletti, PO Box 105 546, Auckland for plaintiffs