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X v Attorney-General

X v Attorney-General

Case [2017] NZHC 768 24 April 2017

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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2015-485-467 [2017] NZHC 768

BETWEEN
X

Plaintiff

AND

THE ATTORNEY GENERAL OF NEW ZEALAND

First Defendant

AND

MINISTRY OF DEFENCE (UNITED KINGDOM)

Second Defendant

Hearing: 6-7 December 2016

Counsel:

J L Bates for Plaintiff
A Martin and J Catran for First Defendant
A S Butler and E J Rushbrook for Second Defendant

Judgment:

24 April 2017

JUDGMENT OF SIMON FRANCE J

X v THE ATTORNEY GENERAL OF NZ [2017] NZHC 768 [24 April 2017]

Table of Contents

Paragraph No.

Introduction ................................................................................................................1

Proceedings .................................................................................................................4

Alleged facts .............................................................................................................4

Claims against MoD(UK) ........................................................................................12

Introduction ............................................................................................................12

Present application ................................................................................................15

Issue one – submission to jurisdiction ...................................................................18

Issue two – state (or sovereign) immunity..............................................................28

Issue three – appropriate forum .............................................................................52

Claims against AGNZ ..............................................................................................63

Introduction ............................................................................................................63

Issue one – appropriate forum ...............................................................................68

Issue two – jurisdictional bar.................................................................................77 (a) Sovereign immunity ......................................................................................85 (b Foreign act of state ........................................................................................87
Conclusion...............................................................................................................102

Introduction

[1] The plaintiff X1 was engaged in the Royal New Zealand Navy from

July 2008 until her resignation in November 2012. For part of this period –

5 January 2009 to 23 April 2010 – X was based in the United Kingdom to receive specialist training from the Royal Navy. During that time X claims she was the subject of sustained sexual harassment of a serious kind. She also claims she was the victim of two sexual assaults, one of which is an allegation of rape.

[2] X also complains that when she returned to New Zealand and undertook service of Royal New Zealand Navy ships she faced unfair work conditions, further incidents of sexual harassment, and inadequate response to her complaints by senior officers.

[3] X has filed proceedings against both the Attorney-General of New Zealand (AGNZ) (on behalf of the New Zealand Defence Force) and the Ministry of Defence (United Kingdom) (MoD(UK)) in relation to events occurring during her time with the Royal Navy, and after her return to New Zealand. This decision addresses preliminary matters that have been raised, the most significant of which is a dispute over whether it is correct to hear the claims in a New Zealand court. Both defendants submit the Courts of England and Wales are the correct forum.

Proceedings

Alleged facts

[4] It is accepted for the purposes of this interlocutory proceeding that the allegations made by X should be treated as capable of being established.

[5] X joined the Royal New Zealand Navy in 2008 for work in a specialist technical area. She was selected for officer training and performed well. The Royal New Zealand Navy, along with many other countries, has a standing arrangement in
place for some of their employees to receive further training from the Royal Navy.

1 This interlocutory proceeding was conducted in open court. However, interim name suppression is in place to protect not only the plaintiff but those against whom allegations are…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading X v Attorney-General

Details

AGLC: X v Attorney-General [2017] NZHC 768
Case: [2017] NZHC 768
Decision Date: 24 April 2017

CaseChat Overview and Summary

In the High Court of New Zealand, the plaintiff X sought to bring claims against the Attorney-General of New Zealand (AGNZ) and the Ministry of Defence (United Kingdom) (MoD(UK)) in relation to alleged incidents of sexual harassment and assault during her service in the Royal Navy. The MoD(UK) argued that the New Zealand court should not hear the case and the claims against it were dismissed. The court held that MoD(UK) could successfully object to jurisdiction on the basis of state immunity and the appropriate forum for the claims was the Courts of England and Wales. The court rejected the plaintiff's argument that there should be an exception to state immunity for allegations of breaches of fundamental human rights. In contrast, the AGNZ protest to jurisdiction was not upheld, and the court held that New Zealand was the appropriate forum for the proceeding. The court also held that the doctrine of foreign act of state did not apply to the case.

Orders