XIE & Anor v SHAOJI [2008] NSWSC 279

New South Wales Supreme Court

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

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

FILE NUMBER(S) : SC 20501/06

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

Not applicable - (Plaintiffs) SOLICITORS : 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 contain rather more detail as to those matters. In the judgment I expressed my view that that was unnecessary but that issue was not fully litigated. 6 It is put now that costs should be awarded to the plaintiffs for a number of reasons, and I will deal firstly with the proposition that the plaintiffs should be awarded their total costs of the application. 7 Reliance was placed upon a letter of request for particulars dated 24 January 2008, and a partial reply dated 1 February 2008. In my opinion, these cannot be relied upon in support of the costs application. When the notices of motion came on for hearing before me, no mention was made of any failure, on the part of the Australian Government Solicitor, to provide the particulars requested, and nor was any request, made for adjournment or for directions concerning those responses that were made. In fact until today, I was completely in the dark about the existence of that correspondence. It can have no bearing upon the costs of the notices of motion which proceeded on the evidence that was put before me. 8 Another document upon which reliance was placed is a document entitled "The Commonwealth's Obligation to Act As a Model Litigant", particularly notes 2 and 3 to that document, which forms part of Exhibit B which was admitted in the costs application only. In particular, note 3 provides: "The obligation to act as a model litigant may require more than merely acting honestly and in accordance with the law and court rules. It also goes beyond the requirement for lawyers to act in accordance with their ethical obligations." 9 The argument that was put in this respect hypothesised that the Attorney General had failed to provide relevant information, particularly concerning the availability of the procedure of entering a conditional appearance of the defendant in the proceedings. Service, or effective service, was a major issue in the proceedings. 10 The submission confuses the role of the Attorney General as somebody who may or may not provide advice to a foreign State, and the Attorney General's role as a litigant, in this case as an applicant for leave to intervene. No criticism was directed to the Attorney General's conduct in the latter respect. 11 The "model litigant" document is of no relevance in the costs application, and I would specifically observe that there has been nothing drawn to my attention which would suggest that the Attorney General has acted other than as a model litigant, in the respects in which he was a litigant. 12 There is nothing, in my opinion, which would justify a general order that the Attorney General to pay the plaintiff's costs of the proceedings. 13 What has given me some pause for thought concerns the two s 40 certificates. It was submitted that the issue of the first certificate, which was then abandoned in favour of the second, had the effect of causing the plaintiffs, through their legal advisors, to embark upon a course of action that was ultimately wasted because of the issue of the subsequent certificate. In the end, I do not think this argument can succeed. It does not appear that the first certificate was used in support of any application for intervention, although its existence was obviously drawn to the attention of the plaintiffs. As I have said, it is my view that the complaint that was made about the first certificate is not justified. The Attorney General made it clear that should he be granted leave to intervene, he would not seek costs. That, of course, does not bind the plaintiffs not to seek costs against him, but I can see no proper basis for ordering the Attorney General to pay the plaintiffs' costs. 14 I make no order as to costs. **********