Pan v Bo [2008] NSWSC 961

Reported Decision : 220 FLR 271

New South Wales Supreme Court

CITATION : Pan v Bo [2008] NSWSC 961

HEARING DATE(S) : 22/05/2008; 23/05/2008

JUDGMENT DATE : 25 September 2008

JURISDICTION : Common Law

JUDGMENT OF : McCallum J

DECISION : 1. That the Attorney-General be granted leave to appear as an intervener in the proceeding. 2. That the default judgment entered on 7 November 2007 be set aside.

CATCHWORDS : Leave sought by Attorney-General of the Comonwealth to appear in proceedings as intervener - if sucessful, application to set aside default judgment - circumstances in which intervention is permitted - whether service effective under the Foreign States Immunities Act 1985 (Cth) - default judgment obtained illegally or irregularly

LEGISLATION CITED : Foreign States Immunities Act 1985 (Cth)

CATEGORY : Procedural and other rulings

CASES CITED : Levy v State of Victoria [1997] HCA 31; 189 CLR 579 Yan Xie v Chen Shaoji [2008] NSWSC 224

Yu Pan (Plaintiff) PARTIES : Xilai Bo (Defendant) Attorney-General of the Commonwealth (Intervener)

FILE NUMBER(S) : SC 11474/06

COUNSEL : B Adam (Plaintiff) C Hutchins (Sol) (Intervener)

SOLICITORS : Australian Government Solicitor (Intervener)

LOWER COURT FILE NUMBER(S) : 11474/06

- 10 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

McCALLUM J

25 SEPTEMBER 2008

11474/06 YU PAN v XILAI BO

JUDGMENT 1 HER HONOUR: The plaintiff is a Falun Gong practitioner from the People's Republic of China. He claims that he was arrested in Beijing in early 2000 because of his beliefs and that he was detained and tortured for nearly 5 months. He says that, after his release, police and local communist party staff continued to harass him and to monitor his movements. 2 The plaintiff came to Australia in April 2001 and is now an Australian citizen. He commenced these proceedings against the Minister of Commerce of the People's Republic of China seeking damages for wrongful arrest, battery and false imprisonment in respect of his claims. He contends that the defendant is vicariously liable for the acts alleged. 3 The defendant was part of a Chinese delegation visiting Australia in September 2007. The plaintiff took that opportunity to have the statement of claim served on the defendant personally in Canberra. Default judgment was entered in favour of the plaintiff on 7 November 2007. 4 The motion before the Court raises the issue whether the default judgment should be set aside, not on the application of the defendant (who has never entered an appearance in the proceedings) but on the application of the Attorney-General of the Commonwealth, who seeks leave to appear as an intervener in the proceeding. 5 The Attorney-General says that the judgment should be set aside because the defendant is a foreign State within the meaning of the Foreign States Immunities Act 1985 (Cth) and service of the statement of claim was not effected in accordance with the requirements of that Act.