Li v Zhou [2013] NSWSC 12

Li v Zhou [2013] NSWSC 12

Subscription by China to Article 14 of the Convention Against Torture does not amount to express or clearly implied agreement to submit to the jurisdiction of Australian courts for civil claims of torture, and the Foreign States Immunities Act requires such waiver to be express or clearly implied. The first defendant maintains immunity under the Act and proceedings must be dismissed.

Parties
First Plaintiff: Jie Lin Li; Second Plaintiff: Jing Xiao Chen; Third Plaintiff: Chang Zhi Yue; First Defendant: Yong Kang Zhou; Second Defendant: Attorney-General of the Commonwealth
Jurisdiction
Australia
Judgment Date
25 January 2013
Procedural Posture
Civil / Application for Default Judgment, Interlocutory Decision
Outcome
Plaintiffs' application for default judgment dismissed; proceedings dismissed.
Legal Topics
Foreign State Immunity, Jurisdiction, Torture Claims
Public International Law Civil Procedure Foreign State Immunity Jurisdiction Torture Claims

Case Brief

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Parties

Jie Lin Li

First Plaintiff

Jing Xiao Chen

Second Plaintiff

Chang Zhi Yue

Third Plaintiff

Yong Kang Zhou

First Defendant

Attorney-General of the Commonwealth

Second Defendant

Procedural Posture

Civil / Application for Default Judgment, Interlocutory Decision

Legal Issues

  1. 1 Whether the Foreign States Immunities Act 1985 (Cth) s 9 confers immunity on the first defendant.
  2. 2 Whether China has submitted to the jurisdiction of the Australian courts by agreement or treaty for purposes of s 10 of the Act.
  3. 3 Whether Article 14 of the Convention Against Torture implies submission to jurisdiction.

Ratio Decidendi

Subscription by China to Article 14 of the Convention Against Torture does not amount to express or clearly implied agreement to submit to the jurisdiction of Australian courts for civil claims of torture, and the Foreign States Immunities Act requires such waiver to be express or clearly implied. The first defendant maintains immunity under the Act and proceedings must be dismissed.

Court Disposition

Plaintiffs' application for default judgment dismissed; proceedings dismissed.

Orders

  • Plaintiffs' application for default judgment dismissed.
  • Proceedings dismissed.