Young v Attorney General - [2019] NZSC 23

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 75/2018
[2019] NZSC 23

BETWEEN	HAYLEY DAWN YOUNG Applicant
AND	ATTORNEY-GENERAL First Respondent MINISTRY OF DEFENCE (UNITED KINGDOM) Second Respondent

Court:	Glazebrook, O’Regan and Winkelmann JJ
Counsel:	J L Bates for Applicant A L Martin, M Majeed and J C Catran for First Respondent A S Butler and M W McMenamin for Second Respondent
Judgment:	6 March 2019

JUDGMENT OF THE COURT

A The application for leave to appeal is dismissed.

BThe applicant must pay the second respondent costs of $2,500.

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REASONS

Introduction

The applicant is a former member of the Royal New Zealand Navy. She was selected for officer training and posted to the Royal Navy, the navy of the United Kingdom, for further training. During the time she spent with the Royal Navy, she says she was subjected to sustained serious sexual harassment, was indecently assaulted (on a Royal Navy ship) and was raped (at a Royal Navy base).
The applicant commenced proceedings in the High Court of New Zealand against the Attorney‑General of New Zealand (the NZ Attorney‑General) and the Ministry of Defence of the United Kingdom (the UK Ministry). Her claims against the UK Ministry were for breach of a duty of care to ensure her safety while in the United Kingdom and vicarious liability (with the NZ Attorney‑General) for the tort of battery (the indecent assault and rape). Her separate claims against the NZ Attorney‑General are for breach of a duty of care, breach of statutory duty and breach of contract. She claims there was a lack of action and support from the Royal New Zealand Navy in relation to the complaints she made about her treatment in the Royal Navy and that she was subjected to unfair working conditions and further sexual harassment after she returned to New Zealand.
The respondents both protested the jurisdiction of the High Court to deal with the applicant’s claims. Both argued the claims should be made in the courts of England and Wales.
In the High Court, Simon France J upheld the UK Ministry’s protest to jurisdiction and dismissed the applicant’s claim against the UK Ministry.[1] However, in relation to the applicant’s claims against the NZ Attorney‑General, he upheld the applicant’s application to set aside the NZ Attorney‑General’s protest to jurisdiction, ruling that the High Court did have jurisdiction in relation to those claims.[2]
[1]X v Attorney‑General [2017] NZHC 768, [2017] 3 NZLR 115 [Young (HC)] at [62].
[2]At [101]. This aspect of the case was not the subject of the appeal to the Court of Appeal or the present application and we say no more about it.
The applicant appealed to the Court of Appeal against the dismissal of her claims against the UK Ministry. That Court dismissed her appeal.[3] She now seeks leave to appeal to this Court.
[3]Young v Attorney‑General [2018] NZCA 307, [2018] 3 NZLR 827 (Cooper, Brown and Williams JJ) [Young (CA)].
The…

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 Young v Attorney General

Details

AGLC: Young v Attorney General [2019] NZSC 23
Case: [2019] NZSC 23
Decision Date: 6 March 2019

CaseChat Overview and Summary

The applicant in this case, Hayley Dawn Young, is a former member of the Royal New Zealand Navy who was posted to the Royal Navy in the United Kingdom for further training. Young alleged that she was subjected to sustained serious sexual harassment, indecent assault, and rape while in the Royal Navy. Young commenced proceedings in the High Court of New Zealand against the Attorney-General of New Zealand and the Ministry of Defence of the United Kingdom, claiming breach of duty of care, vicarious liability, breach of statutory duty, and breach of contract. The respondents argued that the claims should be made in the courts of England and Wales. The High Court upheld the UK Ministry's protest to jurisdiction and dismissed Young's claim against the UK Ministry, but upheld Young's application to set aside the NZ Attorney-General's protest to jurisdiction, ruling that the High Court did have jurisdiction in relation to those claims. Young appealed to the Court of Appeal against the dismissal of her claims against the UK Ministry, but the appeal was dismissed. Young now seeks leave to appeal to the Supreme Court of New Zealand.

The legal issues in this case were whether the applicant's case against the UK Ministry could be pursued in the courts of New Zealand or the courts of England and Wales. The Court of Appeal upheld the High Court's findings on both state immunity and forum non conveniens. The Court of Appeal found that the UK Ministry could object to the jurisdiction of the High Court on the basis of state immunity and that the courts of England and Wales were the appropriate forum for the applicant's claims against the UK Ministry. The Court of Appeal declined to consider whether international human rights instruments should have been considered in the assessment of a claim of forum non conveniens because there was nothing in the material submitted by the applicant that provided an indication that the outcome in this case could be affected by that consideration. The Supreme Court of New Zealand declined leave to appeal and awarded costs of $2,500 to the second respondent.

The Supreme Court of New Zealand declined leave to appeal and awarded costs of $2,500 to the second respondent. The Court found that the arguments the applicant wished to advance were novel, but did not have sufficient prospects of success to justify the grant of leave. The Court also found that there was nothing in the material submitted by the applicant that provided an indication that the outcome in this case could be affected by the consideration of international human rights instruments in the assessment of a claim of forum non conveniens. Therefore, the Court declined to consider the issue of forum non conveniens.

Orders