Young v Attorney-General

Case [2018] NZCA 307


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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA264/2017
 [2018] NZCA 307

BETWEEN

HAYLEY YOUNG
Appellant

AND

ATTORNEY-GENERAL
First Respondent

MINISTRY OF DEFENCE (UNITED KINGDOM)
Second Respondent

Hearing:

13 and 14 March 2018

Court:

Cooper, Brown and Williams JJ

Counsel:

J L Bates for Appellant
A L Martin and T Burgess for First Respondent
A S Butler and M W McMenamin for Second Respondent

Judgment:

13 August 2018 at 11.30 am

JUDGMENT OF THE COURT

A        The appeal is dismissed.

BThe appellant must pay the second respondent costs for a standard appeal on a band A basis and usual disbursements.

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Table of Contents

Para No.

Introduction  [1]
Factual background  [6]
High Court judgment  [8]

State (or sovereign) immunity  [13]

A rule of international law  [14]

The modification of state immunity  [16]

Jurisdiction  [23]

Jurisdiction of courts  [24]
Jurisdiction of states  [28]

Does New Zealand owe Ms Young an obligation to provide her with an effective remedy in the New Zealand courts for the wrongdoing she
suffered abroad at the hands of Royal Navy personnel as a matter of
domestic law under the NZBORA?  [35]
Does New Zealand owe Ms Young an obligation to provide her with an effective remedy in the New Zealand courts for the wrongdoing she
suffered abroad at the hands of Royal Navy personnel as a matter of international law because of the nature of the wrongdoing involving
arguable violation of Ms Young’s fundamental rights?  [54]

An obligation as a matter of customary international law  [55]
An obligation under various treaties  [64]

A procedural dimension of the right to a remedy  [71]
The extended jurisdiction argument   [88]

Should the Court dismiss the protest to jurisdiction by the MOD(UK)
on the grounds that the alleged wrongdoing breached a fundamental principle of justice or some deep-rooted tradition of New Zealand which engages an iniquity exception to the state immunity doctrine?  [95]
Are the courts of England and Wales or is the High Court of
New Zealand the more appropriate forum for Ms Young’s claim against
the MOD(UK)?   [102]
Result  [109]

REASONS OF THE COURT

(Given by Brown J)

Introduction

  1. A protest by the United Kingdom Ministry of Defence (MOD(UK)) on the ground of state immunity to the jurisdiction of the New Zealand courts to hear and determine Ms Young’s claim in respect of her alleged wrongful treatment by Royal Navy personnel in the United Kingdom was upheld in the High Court.[1]  Had it been necessary to do so Simon France J would also have concluded that as a matter of forum conveniens the courts of England and Wales were the appropriate forum for Ms Young’s claim against the MOD(UK).[2]  Ms Young appeals those findings. 

    [2]At [58].

  2. The thrust of Ms Young’s argument against recognition of state immunity as a jurisdictional bar, both in the High Court…

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AGLC
Young v Attorney-General [2018] NZCA 307
Case
[2018] NZCA 307
Decision Date

CaseChat Overview and Summary

This case involved an appeal by Hayley Young against the High Court's decision to dismiss her claims against the United Kingdom Ministry of Defence (MOD(UK)) on the ground of state immunity. The Court of Appeal dismissed the appeal, holding that the High Court was correct to find that the MOD(UK) could successfully object to jurisdiction on the basis of state immunity. The court found that New Zealand does not owe Ms Young an obligation to provide her with an effective remedy in the New Zealand courts for the alleged wrongdoing she suffered abroad at the hands of Royal Navy personnel as a matter of domestic law under the New Zealand Bill of Rights Act 1990, or as a matter of international law because of the nature of the alleged wrongdoing involving arguable violation of Ms Young’s fundamental rights. The court also rejected the argument that the state immunity doctrine should be dismissed on the grounds that the alleged wrongdoing breached a fundamental principle of justice or some deep-rooted tradition of New Zealand which engages an iniquity exception to the state immunity doctrine. The court concluded that the courts of England and Wales were the more appropriate forum for Ms Young’s claim against the MOD(UK).

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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