Navy rape victim loses another appeal to have case heard in NZ

Former navy engineer Hayley Young at her Napier home. Photo / Mark Mitchell

A former New Zealand naval officer who was allegedly raped and sexually harassed while on deployment in Britain has lost an appeal to have her case heard in the Supreme Court.

Hayley Young has spent the past four years trying to have a legal case brought against both the New Zealand and British governments - here in New Zealand.

She wants to argue the NZ and British defence forces failed to keep her safe.

Young said she was physically assaulted twice, once when a British officer raped her in 2009, and once when a male officer placed his hand on her crotch while she was climbing a ladder.

Both incidents happened after she was posted to the United Kingdom for officer training.

Young decided not to take legal action against the man who allegedly raped her and instead decided to challenge the culture that enabled it.

Her claims against the UK Ministry were for breach of a duty of care to ensure her safety while in the UK and vicarious liability - with the NZ Attorney-General - for the tort of
battery.

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 NZ Navy in relation to the complaints she made about her treatment.

She also claims that she was subjected to unfair working conditions and further sexual harassment after she returned to New Zealand.

Young first took her case to the Court of Appeal last year, after previously losing a High Court bid to bring a compensation case in both New Zealand and Britain.

Her first appeal was dismissed because of jurisdiction issues and she was ordered to pay legal costs for Britain's Ministry of Defence.

In a decision last August, the judges ruled that a New Zealand court could not hear her claims, even though she was working for the New Zealand Navy at the time.

It said claims against the UK Ministry should be made in the courts of England and Wales, however ruled that matters against the NZ Attorney-General could be dealt with in New Zealand.

Young has since sought to have the dismissal of her claims against the UK Ministry heard in the Supreme Court.

Court documents stated that the High Court originally objected to hearing the matter on the basis of state immunity.

Young sought an exception to state immunity by arguing that "the New Zealand state has a duty not to deprive an individual of the right to an effective remedy in a domestic forum for a breach of his or her human rights".

She argued this should apply to matters outside of New Zealand because at the time she was still an officer of the Royal New Zealand Navy.

The Supreme Court judges accepted that her arguments may be worthy of leave in a suitable case - "but this was not that case".

"While the arguments the applicant wishes to advance are novel, we do not consider they have sufficient prospects of success to justify the grant of leave. Nor do we consider there is any appearance of a miscarriage of justice in the way the Court of Appeal addressed the issue," they said.

The Supreme Court also considered the issue of non conveniens - which allows courts to dismiss a case where another court is much better suited to hear the case.

It agreed to the position decided by the High Court, that the courts of England and Wales were better suited because the people alleged to have committed the acts, and the witnesses, were all based in the UK.

The Supreme Court therefore decline Young's appeal and awarded costs of $2500 to the UK Ministry of Defence.