Zhang v Zemin & Anor

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

Charter of the United Nations, Art. 2.1 Foreign States Immunities Act 1985 (Cth) - ss 9, 10, 13 & 24 LEGISLATION CITED : 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)

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 CASES CITED : 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

Cui Ying Shang - Plaintiff PARTIES : 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

LOWER COURT JUDICIAL OFFICER : Registrar Riznyczok

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

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 ensure the pleadings are in order. 3 By further notice of motion filed 2 March 2007 the plaintiff seeks two further orders namely, that the limitation period for the causes of action of the plaintiff be extended until 14 September 2004, and that Luo, Gan, Party Secretary of the Political and Judiciary Committee of the CCP Central Committee and Chief Executive Officer of the 610 Office be joined as a defendant. The plaintiff relied on her affidavits sworn 17 March 2005, 22 February 2006, 2 March 2007 and the affidavit of Yuan Hongbing 8 March 2007. 4 The plaintiff is Cui Ying Zhang. Since 1997, the plaintiff has been a practitioner of Falun Gong, believing in "Truth, Compassion and Forbearance". The first defendant is Jiang Zemin (Jiang), who was at the relevant time President of the People's Republic of China. The second defendant is Falun Gong Control Office the 610 Office (Falun Gong).

Review 5 Rule 49.19 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) provides: "49.19 Review of registrar's directions, orders and acts If a registrar gives a direction or makes an order or does any other act in any proceedings, the court may, on application by any party, review the direction, order or act and make such order, by way of confirmation, variation, discharge or otherwise, as the court thinks fit." 6 The approach I have taken is that I should inform myself of all the material before the Registrar at the time when he made the decision and the Registrar's decision itself. I should make my own decision based on the material before me after having the benefit of counsel's submissions. The plaintiff seeks to file an amended statement of claim and notice of motion seeking an extension of the limitation period. Those documents are in evidence.

The Registrar's decision 7 By notice of motion filed 27 February 2006 the plaintiff sought firstly, an order that the time for service of documents on the defendants under Division 2, Part 10 of the Supreme Court Rules 1970 (NSW) and s 24 of the Foreign States Immunities Act be extended for six months from the date of order; and secondly, an order that the Attorney General's Department and/or the Department of Foreign Affairs and Trade take immediate action to forward the documents through diplomatic channels for service of the originating process on the defendants in the People's Republic of China within one month from the date of order. 8 The Registrar dismissed the motion for the following reasons: "Where the pleadings are not in order, the Court should not exercise its discretion to extend the time for the doing of a thing. In my view, the claim as presently pleaded does not entitle the plaintiff to an extension of the validity for service."

Nature of the case 9 By statement of claim filed 15 September 2004 the plaintiff seeks compensatory and punitive damages for personal injuries sustained while visiting China in 1999 and 2000. 10 The Registrar was correct in his decision in saying that the pleadings were not in order. The statement of claim in its original form was defective. The defendants would not have been able to discern from that document what case they had to meet. However, an amended statement of claim has since been drafted. For the purposes of this application, I have taken the plaintiff's case at its highest. In so doing, I have accepted the facts as pleaded in the amended statement of claim as being correct. I also grant leave 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. Lest there be no mistake, should this matter ultimately come to trial, these facts would almost certainly be disputed. 11 The plaintiff still seeks orders for compensatory, aggravated and exemplary damages and damages for personal injury, both physical and psychological. The types of injury she has and is suffering include severe migraine, maculopapular rash, head trauma, post traumatic stress disorder and major clinical depression. She alleges causes of action of wrongful arrests, assaults (torture) and false imprisonment. ASC wrongful arrests, assaults and batteries, torture, total restraint and false imprisonment. 12 From 26 January 2000 to 29 January 2000 the plaintiff alleges she was wrongfully arrested for being a Falun Gong practitioner, falsely imprisoned for 70 hours, assaulted and tortured, deprived of sleep, then repeatedly punched and kicked in the company of three. From 4 February 2000 to 11 February 2000, the plaintiff alleges that she was wrongfully arrested, imprisoned for seven days, deprived of sleep, assaulted and tortured. From 5 March 2000 to 4 November 2000 the plaintiff alleges she was assaulted, transported to an army camp, forced to stand for extended periods outside in the cold without adequate clothing, was beaten intermittently for 24 hours, falsely imprisoned for eight months, forced to wear shackles weighting 10kgs and forced to do physical labour seven days a week for ten hours a day manufacturing export products. The plaintiff further alleges that during this period she was put in a 12 square metre cell with 10 male prisoners for approximately two months, and on one occasion was forced before a closed circuit camera and had her clothing removed. There are more allegations of this nature made by the plaintiff. 13 The original statement of claim was filed on 15 September 2004 and refers to events which occurred from 31 December 1999 to 13 January 2001. Under s 18A of the Limitation Act 1969 (NSW), the plaintiff had three years to commence an action. Her statement of claim should have been filed by 13 January 2004, at the latest. There are provisions for an extension of time to commence proceedings - see ss 60C, 60E, 60G and 60I of the Limitation Act 1969. The plaintiff has sought that such an extension be granted. 14 Normally, expiration of the Limitation Act is a matter which is pleaded by way of defence. However, by seeking such an order it cannot be said that the plaintiff's claim is futile on the basis that it is statute barred. There is evidence to support her claim, including medical reports and the affidavit of Yuan Hongbing, Professor in Law, former Head of the Litigation Law Section of the Law Department of Beijing University and former Dean of the Law School of Guizhou Normal University.

The UCPR 15 If the defendants are to be served outside New South Wales the statement of claim is valid for six months after the date on which it is filed (UCPR 6.2(4)(b)(ii)). However, failure to serve an originating process within the time limited by these rules does not prevent the plaintiff from commencing fresh proceedings by filing another originating process (UCPR 6.2(5)). 16 In FAI Insurances Ltd (in Liquidation) v Mainprize [2006] NSWSC 554 Simpson J stated: "15 The Uniform Civil Procedure Rules give no guidance as to the principles applicable to an application such as this. I was referred to a decision of the House of Lords in Kleinwort Benson Ltd v Barbrak Ltd [1987] 1 AC 597, with respect to the parallel English rule. There the test applied was whether the evidence showed "good reason" for extending the time. That, too, was an unusual case, and the first instance judge concluded that good cause had been shown.

16 The House of Lords upheld that view. Their Lordships simply stated the "good reason" as the saving of unnecessary proceedings and costs, without any prejudice to the defendants." 17 Item (e) of Schedule 6 of the UCPR allows the service of a claim overseas "if the proceedings, wholly or partly, are found on, or are for the recovery of damages in respect of, damages suffered in New South Wales caused by a tortious act or omission wherever occurring." It is sufficient if damage is suffered in New South Wales - see Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197). The Court is not an inappropriate forum merely by virtue of it having to apply foreign law as the lex causae - see Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491 at [81]). 18 Ms Zhang's explanation for the delay in effecting service is as follows. On 15 August 2005, she made a request to transmit the documents under Part 11 of the UCPR. Unfortunately, the Court did not transmit these until 7 November 2005. The Department of Foreign Affairs (DFAT) declined to transmit the documents, as they were no longer valid for service. The statement of claim was then 11 months old when it was lodged with the Court and 14 months old when it was received by DFAT (see Registrar's decision, 13/03/2006). The delay since 15 August 2005 was largely beyond Ms Zhang's control. 19 The delay in perusing this application is that Ms Zhang was seeking legal advice. Between 21 April 2006 and 2 June 2006, the plaintiff sought advice from Mr Joe Tan of Legal Aid. By letter dated 28 July 2006, Ms Zhang wrote seeking a further adjournment to obtain legal advice. She was then informed by Legal Aid that they would no longer be representing her. The plaintiff now has the benefit of legal representation. An amended statement of claim, which properly particularises the plaintiff's claim, has been filed. Counsel's submissions have been of assistance. 20 It is my view that the plaintiff has shown good reason to extend the time for service of documents in China. The defendants have not suffered prejudice other than the presumptive prejudice caused by delay. It is my view that an extension of time should be granted for the service of the amended statement of claim and notice of motion. 21 In light of subsequent events, namely the filing of a properly particularised amended statement of claim, I set aside the order of Registrar Riznyczok dated 13 March 2006. I grant leave to extend the time of service of the amended statement of claim for a period of six months. It is anticipated the Registry will transmit this application for service overseas expeditiously. On the last occasion there was a delay of processing by the Registry for a period of 2½ months. 22 Once the amended statement of claim is served, the issue of immunity and the operation of the Foreign States Immunities Act 1985, in particular ss 9, 10 and 13, can be ventilated. Central to the case will be an examination of the relationship between two principles of international law. The first is the condemnation of torture as an international crime against humanity (see Art. 7(1)(f) of the Rome Statute of the International Criminal Court; Princz v Federal Republic of Germany, DC Ct App, ILR 103 at 618 per Wald J (dissenting)). The second is the principle that states are sovereign and equal, and are not subjected to each other's jurisdiction - see Jones v Ministry Al-Mamlaka Al-Arabiya AS Saudiya (the Kingdom of Saudi Arabia) [2006] UKHL 26; Art. 2.1, Charter of the United Nations.

(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. **********

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.