Pan v Bo [2008] NSWSC 961

Pan v Bo [2008] NSWSC 961

The defendant was conclusively established by ministerial certificates to be a foreign State for the purposes of the Foreign States Immunities Act 1985 (Cth). The statement of claim had not been served by agreement or through the diplomatic channel as required by the Act, so service was ineffective and s 27 prohibited entry of default judgment. Because the default judgment was entered irregularly or illegally, sufficient cause existed under UCPR r 36.15 to set it aside, and it was appropriate to do so to protect the integrity of the Court's processes.

Jurisdiction
Australia
Judgment Date
25 September 2008
Procedural Posture
Common Law Proceeding Seeking Damages for Wrongful Arrest, Battery and False Imprisonment / Motion by the Attorney General of the Commonwealth for Leave to Intervene and to Set Aside Default Judgment
Outcome
Attorney-General granted leave to appear as intervener; default judgment set aside.
Legal Topics
['intervention by Attorney General' 'service of Initiating Process on a Foreign State' 'default Judgment' 'foreign States Immunities Act 1985 (cth)']
['civil Procedure' 'foreign State Immunity'] ['intervention by Attorney General' 'service of Initiating Process on a Foreign State' 'default Judgment' 'foreign States Immunities Act 1985 (cth)']

Case Brief

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Procedural Posture

Common Law Proceeding Seeking Damages for Wrongful Arrest, Battery and False Imprisonment / Motion by the Attorney General of the Commonwealth for Leave to Intervene and to Set Aside Default Judgment

Legal Issues

  1. 1 ['Whether the Attorney-General of the Commonwealth should be granted leave to intervene.' 'Whether the requirements of the Foreign States Immunities Act 1985 (Cth) for service of initiating process on a foreign State were complied with.' 'Whether the default judgment entered on 7 November 2007 should be set aside.']

Ratio Decidendi

The defendant was conclusively established by ministerial certificates to be a foreign State for the purposes of the Foreign States Immunities Act 1985 (Cth). The statement of claim had not been served by agreement or through the diplomatic channel as required by the Act, so service was ineffective and s 27 prohibited entry of default judgment. Because the default judgment was entered irregularly or illegally, sufficient cause existed under UCPR r 36.15 to set it aside, and it was appropriate to do so to protect the integrity of the Court's processes.

Court Disposition

Attorney-General granted leave to appear as intervener; default judgment set aside.

Orders

  • ['That the Attorney-General be granted leave to appear as an intervener in the proceeding.' 'That the default judgment entered on 7 November 2007 be set aside.']