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

X v THE ATTORNEY GENERAL OF NZ [2017] NZHC 768 [24 April 2017]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYCIV 2015-485-467[2017] NZHC 768BETWEEN XPlaintiffAND THE ATTORNEY GENERAL OF NEWZEALANDFirst DefendantAND MINISTRY OF DEFENCE (UNITEDKINGDOM)Second DefendantHearing: 6-7 December 2016Counsel: J L Bates for PlaintiffA Martin and J Catran for First DefendantA S Butler and E J Rushbrook for Second DefendantJudgment: 24 April 2017JUDGMENT OF SIMON FRANCE JTable of ContentsParagraph No.Introduction ................................................................................................................ 1Proceedings ................................................................................................................. 4Alleged facts ............................................................................................................. 4Claims against MoD(UK) ........................................................................................ 12Introduction ............................................................................................................ 12Present application ................................................................................................ 15Issue one – submission to jurisdiction ................................................................... 18Issue two – state (or sovereign) immunity .............................................................. 28Issue three – appropriate forum ............................................................................. 52Claims against AGNZ .............................................................................................. 63Introduction ............................................................................................................ 63Issue one – appropriate forum ............................................................................... 68Issue two – jurisdictional bar................................................................................. 77(a) Sovereign immunity ...................................................................................... 85(b Foreign act of state ........................................................................................ 87Conclusion............................................................................................................... 102Introduction[1] The plaintiff X1 was engaged in the Royal New Zealand Navy from July 2008until her resignation in November 2012. For part of this period – 5 January 2009 to23 April 2010 – X was based in the United Kingdom to receive specialist training fromthe Royal Navy. During that time X claims she was the subject of sustained sexualharassment of a serious kind. She also claims she was the victim of two sexualassaults, one of which is an allegation of rape.[2] X also complains that when she returned to New Zealand and undertookservice of Royal New Zealand Navy ships she faced unfair work conditions, furtherincidents of sexual harassment, and inadequate response to her complaints by seniorofficers.[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 withthe Royal Navy, and after her return to New Zealand. This decision addressespreliminary matters that have been raised, the most significant of which is a disputeover whether it is correct to hear the claims in a New Zealand court. Both defendantssubmit the Courts of England and Wales are the correct forum.ProceedingsAlleged facts[4] It is accepted for the purposes of this interlocutory proceeding that theallegations 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 specialisttechnical area. She was selected for officer training and performed well. The RoyalNew Zealand Navy, along with many other countries, has a standing arrangement inplace 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 suppressionis in place to protect not only the plaintiff but those against whom allegations are made. Thesuppression orders will require reconsideration prior to the substantive hearing.Selection is at the discretion of the Royal New Zealand Navy. X was offered andaccepted one of those spots. Whilst posted to the Royal Navy, X was under thecommand of both the Royal Navy and Royal New Zealand Navy. She continued to bepaid by the Royal New Zealand Navy and the expectation was that she would returnthere upon completion of her training.[6] During the posting X spent time in a shore based training facility and sometime on two Royal Navy ships. While at the training facility and on the ships, X claimsthat she was subjected to a culture of sexual harassment:(a) Junior Ratings were allowed by superior officers to dare each other to"conquer" female service women by having sex with them. Rewardswere offered;(b) X received constant and unwanted approaches for sexual activity, andthis occurred with the knowledge of superior officers, who did nothingdespite knowing it was causing distress;(c) male naval personnel conducted a survey in X's presence about whoamongst their number wanted to have sex with her; and(d) a particular officer made masturbating gestures in her presence.[7] X also specifies two instances of physical assault (the first occurring on aparticular UK navy ship, the second on a UK base). In the first a male naval officerplaced his hand on her crotch whilst she ascended a ladder. In the second, a differentmale officer had sexual intercourse with her without her consent. These eventsoccurred in 2009. No complaint to authorities was made at the time. All the personnelbeing complained about up to this point were members of the Royal Navy, and theevents occurred overseas on British ships or land based facilities.[8] After her training in the United Kingdom concluded, X took leave for personaltravel before returning to the Royal New Zealand Navy. Upon returning, X wasrequired to undertake a joining interview with a senior officer. She says that at thatinterview she complained of the unsafe environment while posted overseas, includingthe sexual harassment. It is said the superior officer was dismissive and madeinappropriate comments about such conduct, and her need to cope with it. X wasposted to a Royal New Zealand Navy ship. Whilst on board she says she complainedto superior officers on the ship about abusive language and lewd comments beingdirected towards her. She says she received an unsupportive response from a namedofficer who it is alleged also witnessed some of the events.[9] The Royal New Zealand Navy ship X was aboard travelled to overseas ports.At one, X says an officer of the host nation's service forced her to compete in adrinking contest and subjected her to sexual harassment and assault.[10] Eventually X was posted to a different Royal New Zealand Navy ship. Sheclaims that on board that ship there continued to be incidents of harassment withunwanted sexual references. It is claimed male naval employees were encouraged todrink and to cheat on their partners.[11] The stress of these cumulative events over the years, and what is said to be alack of support, led X to resign. Claims are made about events that occurred duringthe period leading up to this. At one point X recorded her experiences in writing in adocument entitled "My Story". She sent it to the officer who had suggested itspublication. It was then, without her consent, forwarded to a number of navalpersonnel. X claims nothing, however, was done in response to the story.Claims against MoD(UK)Introduction[12] Although there is a considerable overlap in the proceedings against eachdefendant, it is convenient for analysis purposes to focus first on the claims againstMoD(UK):(a) breach of a duty of care to take all reasonable steps to ensure the safetyof X while in the United Kingdom, the failures being evidenced by herbeing subject to an intimidating, hostile or humiliating environment;and(b) vicarious liability (jointly with AGNZ) for the tort of battery, namelythe two physical assaults (being, an indecent assault and a raperespectively).[13] The damage pleaded as a consequence of these events focuses solely on whathas happened to X in New Zealand subsequent to her return. It is said the sexualassaults:caused foreseeable harm to the plaintiff at the time and is on-going inNew Zealand, and has caused an impact on the plaintiff's earnings and earningpotential and career development in New Zealand.It had earlier been pleaded that due to the failings of both Navies, the plaintiff had feltunable to continue with her service and had resigned.[14] The negligence cause of action is pleaded in similar terms:Foreseeable Consequences113. The Plaintiff has suffered ongoing and foreseeable extremeannoyance, vexation, distress and the loss of enjoyment of life.114. The Plaintiff's suffering is ongoing and has caused damage to hercareer and her earnings in New Zealand. The Plaintiff requires specialmedical care and counselling, particulars of which will be given at orbefore trial.WHEREFORE THE PLAINTIFF SEEKS:(a) An enquiry into her financial losses;(b) An enquiry into the special damages sustained, including interalia ongoing medical support costs;(c) Judgment for such loss and damage following the enquiry;(d) General and aggravated damages in the sum the Court thinksfit;(e) Costs;(f) Interest.Present application[15] MoD(UK) seeks a dismissal of the proceedings on the basis that it is not, orshould not be, subject to the jurisdiction of the Court. Because the plaintiff served theproceedings on MoD(UK) overseas without first obtaining leave of the Court to do so,the protest to jurisdiction (and the plaintiff's application to set it aside) falls to bedetermined under r 6.29 of the High Court Rules 2016. Rule 6.29 provides:6.29 Court's discretion whether to assume jurisdiction(1) If service of process has been effected out of New Zealand withoutleave, and the court's jurisdiction is protested under rule 5.49, thecourt must dismiss the proceeding unless the party effecting serviceestablishes—(a) that there is—(i) a good arguable case that the claim falls whollywithin 1 or more of the paragraphs of rule 6.27; and(ii) the court should assume jurisdiction by reason of thematters set out in rule 6.28(5)(b) to (d); or(b) that, had the party applied for leave under rule 6.28,—(i) leave would have been granted; and(ii) it is in the interests of justice that the failure to applyfor leave should be excused.(2) If service of process has been effected out of New Zealand under rule6.28, and the court's jurisdiction is protested under rule 5.49, and it isclaimed that leave was wrongly granted under rule 6.28, the courtmust dismiss the proceeding unless the party effecting serviceestablishes that in the light of the evidence now before the court leavewas correctly granted.(3) When service of process has been validly effected within NewZealand, but New Zealand is not the appropriate forum for trial of theaction, the defendant may apply for a stay, or for a dismissal of theproceeding under rule 15.1.[16] It is to be noted that the onus is with the plaintiff.[17] The Rule lays out a sequence of inquiries to be made. Two alternative routesare provided: r 6.29(1)(a) or r 6.29(1)(b). However, it is possible here to identify somekey common questions that are likely to be determinative under either route:(a) First, X claims that MoD(UK) has, by its conduct, submitted to theCourt's jurisdiction and it is too late to protest it. If correct in this, anyclaim of state immunity is lost. The only argument left to MoD(UK)would then be a claim that the "appropriate forum" are the Courts ofEngland and Wales, and the New Zealand court should decline to hearthe case ("the forum argument").(b) Second, if state immunity has not been waived, is it applicable here asMoD(UK) claims? If it is applicable, a stay would have to be issued.The plaintiff accepts there is an issue, but contends that an exception tostate immunity should be recognised for allegations of fundamentalviolations of human rights, such as this case represents.(c) The third key inquiry, if the preceding two are not determinative, is theforum argument. All the events, so far as MoD(UK) is concerned,happened in the UK or on its ships. That would suggest the Courts ofEngland and Wales are the appropriate forum. However, as pleaded,the damage being claimed occurred in New Zealand. The plaintiffcontends this, along with the reality of the parallel proceedings againstAGNZ, and the background context of joint "employment" by bothnavies, is enough to justify the proceedings staying in New Zealand.(d) If the plaintiff succeeds in relation to these steps, there are furthermatters arising under either route that would require analysis.Issue one – submission to jurisdictionIn order to establish that the defendant has by his conduct in the proceedingssubmitted or waived his objection to the jurisdiction, it must be shown that hehas taken some step which is only necessary or only useful if the objection hasbeen waived or never been entertained at all.(Dicey, Morris and Collins, The Conflict of Laws)22 Lord Collins of Mapesbury and others Dicey Morris and Collins on the Conflict of Laws (15th ed,Sweet and Maxwell, London, 2012) at [11-129].[18] In the present case it is said the defendant has submitted to jurisdiction by filinga joint consent memorandum seeking the Court's agreement to extend the time withinwhich the statement of defence might be filed. The plaintiff also relies on the contentof contemporaneous correspondence between the lawyers about obtaining theextension for filing the statement of defence. It is noted that all of MoD(UK)'scorrespondence is couched in terms of the extension enabling the filing of a defence,and there is no reference to state immunity.[19] There is no doubt that if the defendant had filed a statement of defence it wouldconstitute a waiver of state immunity. However, whether a preliminary proceduralstep of the type in issue here has the same effect is less clear. The plaintiff relies onEllison Trading Ltd v Liebherr Export – AG,3 and on two overseas authorities whichare submitted to be indistinguishable. In Ellison Trading, the parties had informallyagreed to an extension of time for filing a defence but no application had been madeto the Court. However, the defendants had filed a request for further particulars,detailing specific requirements for each cause of action. The evidence established thatcompliance with one aspect of the requirement for further particulars had necessitated240 hours of endeavour by the plaintiff. Master Faire held the conduct of thedefendants constituted submission to jurisdiction. In my view the presentcircumstances are different. An application to adjourn the first formal step required ofa defendant is no more than a holding action. By contrast, the request for particulars,which in Ellison Trading required identification by the plaintiff of numerous motorparts and attribution of a value to each of them, was a positive engagement with theproceedings.[20] In Global Multimedia International Ltd v Ara Media Services the defendantswere part of a large media and broadcasting group based in the Middle East.4 Theproceeding alleged wrongful repudiation of a contract.3 Ellison Trading Ltd v Liebherr Export – AG HC Hamilton CP76/99, 20 December 2001, MasterFaire.4 Global Multimedia International Ltd v Ara Media Services [2006] EWHC 3107 (Ch).[21] One of the defendants protested jurisdiction, but was unsuccessful because itwas held the defendant had already submitted to jurisdiction. The relevant conductincluded:(a) his solicitors sought an extension of time from the plaintiff's solicitorswithin which to file a defence;(b) the solicitors filed with the Court an acknowledgement of service.Protest to jurisdiction was not mentioned on either occasion;(c) a letter to the plaintiff's solicitors invited withdrawal of the claimbecause it had been previously settled. Failing that, it was indicatedthat an application to strike out the proceeding on this basis would befiled; and(d) not filing a protest to jurisdiction until two weeks after the prescribedtime.[22] The Court considered an objective observer would consider this combinationof steps was only consistent with acceptance of jurisdiction. Reference wasparticularly made by the Court to defence counsel's letter indicating what defenceswould be relied on, and the threat to file a strike out application. These are featuresnot evident in the present case. For this reason I do not regard the case as on all fours,but rather as involving, on a cumulative basis, a significantly greater level ofengagement.[23] The second overseas authority relied on is Monrose Investments v OrionNominees.5 The test there applied had a different focus, being whether the acts of thedefendant were consistent with an objection to jurisdiction (rather than referable onlyto an acceptance of jurisdiction). In Monrose the only act said to constitute submissionto jurisdiction appears to be, like here, the seeking of an extension of time for filing adefence. However, unlike here, there the application was accompanied by evidence5 Monrose Investments v Orion Nominees [2001] CP Rep 109 (Ch).which spoke of the complex issues involved in "setting a defence" and the need forextra time.[24] I accept Monrose is much closer to the present facts. It is of course not bindingon this Court, and I respectfully take a different view. Objectively all that hashappened in the present case is the postponing, by consent, of the filing of a defence.Obtaining such an extension of time is a minor and routine engagement with the Court.The decision was made on the papers by a Registrar on the day the application wasfiled. Such a minor procedural step ought not be seen as depriving a defendant of theopportunity to protest jurisdiction. A similar view was reached by MasterKennedy-Grant in Republic of Nauru v Niue Airlines Ltd.6 There the conduct consistedof the filing of an address for service, and an appearance on a procedural call where,by consent, the date for filing a defence was extended.[25] In the present case, there was no court appearance as in Air Nauru but littleshould turn on whether the extension is achieved by way of memorandum orappearance. In either case I do not consider it can yet be said the defendant's conductis only referable to accepting jurisdiction. It is equally consistent with simply seekingtime to consider complex proceedings arriving from an overseas jurisdictionsomewhat out of the blue.[26] Mr Butler submitted the Court should be wary about an unduly technical orstrict approach when what is at stake is the capacity of a sovereign nation to assertstate immunity. It is not necessary for me to consider this further given the view Itake, but it did seem to me to have some merit. The upholding of proper claims tostate immunity is an important aspect of the way in which the community of nationsregulates itself. Holding that a sovereign immunity claim cannot even be consideredbecause it has been inadvertently waived at a very early stage by dint of filing anuncontentious consent memorandum concerning timetabling of the first defence mightbe thought to be giving insufficient weight to the principles which underlie stateimmunity.6 Republic of Nauru v Niue Airlines Ltd [1993] 2 NZLR 632 (HC).[27] I accordingly reject the proposition that MoD(UK) submitted to jurisdictionprior to filing its protest to jurisdiction.Issue two – state (or sovereign) immunitySovereign immunity is a doctrine applying to sovereign states or, as it issometimes expressed, independent sovereign states. In general at commonlaw, reflecting international law, such a state will not be impleaded in theCourts of another country (in this instance New Zealand) against its will andwithout its consent; the exercise of jurisdiction is seen as incompatible withthe dignity and independence of the foreign state. Formerly the common lawimmunity was more comprehensive than it now is, but a line of cases decidedin England from 1975, recognising that international law had changed, heldthat the common law had changed correspondingly by adopting a "restrictivetheory". In particular the commercial activities of states are no longerprotected. The leading exposition of the modern principles is generally takento be the speech of Lord Wilberforce in Playa Larga (owners of cargo latelyladen on board) v I Congreso del Partido (owners) [1983] AC 244. Thedifficulties that can arise are illustrated by the circumstance thatLord Wilberforce (with Lord Edmund-Davies) was in a minority as to theresult of applying the principles to the facts in one of the two appeals thereunder consideration. The distinction falling to be made is described as beingbetween jure gestionis and jure imperii, and Lord Wilberforce put the test asfollows at p 267:"The conclusion which emerges is that in considering, under the'restrictive' theory whether state immunity should be granted or not,the court must consider the whole context in which the claim againstthe state is made, with a view to deciding whether the relevant act(s)upon which the claim is based, should, in that context, be consideredas fairly within an area of activity, trading or commercial, or otherwiseof a private law character, in which the state has chosen to engage, orwhether the relevant act(s) should be considered as having been doneoutside that area, and within the sphere of governmental or sovereignactivity."(Cooke P, Governor of Pitcairn v Sutton)7[28] The parties are agreed that the impugned conduct generally falls within an areacovered by state immunity. Further, it is not suggested that any of the establishedexceptions apply. Rather, the plaintiff calls in aid a controversial "iniquity" exceptionto state immunity. The possibility of such an exception was recognised by the Courtof Appeal in Controller and Auditor General v Davison (Davison) but has nototherwise been applied.87 Governor of Pitcairn v Sutton [1995] 1 NZLR 426 (CA) at 428 per Cooke P.8 Controller and Auditor General v Davison [1996] 2 NZLR 278 (CA).[29] The plaintiff submits hers are allegations of cruel and degrading treatmentand/or torture, and that the forum court (here New Zealand) should not entertain aclaim of state immunity when it is alleged such conduct has been committed on oneits citizens by the foreign state. X distinguishes her situation from other attempts torely on this exception by emphasising the close connection of her situation toNew Zealand. At the time of the offending conduct she was employed by the RoyalNew Zealand Navy. She was in the United Kingdom only by virtue of a memorandumof co-operation between the two navies, and she continued to be paid by the RoyalNew Zealand Navy and be subject to its control. Further, the pleaded damage relatesonly to consequences occurring in New Zealand. There is no claim in relation to thedirect or immediate harm occurring at the time of the incidents.[30] There is much writing that supports the recognition of an exception to stateimmunity where what is alleged is a breach of fundamental values. Mr Bates drawson two threads in developing a comprehensive submission that New Zealand shouldbe somewhat of a ground-breaker and give effect to a citizen's rights to be protectedfrom breaches of fundamental rights. First, it is emphasised that state immunity is aflexible concept that has evolved, and which is susceptible to different emphases andapproaches by different jurisdictions. In this regard considerable weight is placed oncomments by members of the Court of Appeal in Davison. Second, it is submitted thatthere is growing support in authoritative academic writings and some decisions ofnational courts to recognise that there is a hierarchy of values (the normative hierarchytheory) and that when there is a conflict, the doctrine of state immunity must yield tothe higher value accorded to human rights protection.9[31] The starting point for the plaintiff's argument is the decision in Davison.10 Thatcase involved the so-called Winebox inquiry where it was alleged that by issuing taxcredits to be used in New Zealand, the Cook Islands Government was complicit in taxevasion aimed at the integrity of the New Zealand tax system. The New ZealandAuditor-General performed similar auditing functions for the Cook IslandsGovernment, and in that capacity had in his possession, in New Zealand, documents9 See, for example, Lee Caplin "State Immunity, Human Rights and Jus Cogens : A critique of theNormative Hierarchy Theory" (2003) 97(4) AJIL 741.10 Davison, above n 8.that were relevant to the Winebox inquiry. A direction by the Commission of Inquiryto the Auditor-General to disclose the documents was met by a claim of stateimmunity.[32] One established exception to state immunity is that it does not apply to thecommercial activities of a foreign state. In Davison three members of the Courtconsidered the activities of the Cook Islands Government were commercial for thepurposes of the exception and so state immunity was not available.[33] Richardson J, with whom McKay J agreed, took a different view, consideringthat the issuing of tax credits was a quintessential governmental action and thereforestate immunity was engaged. However, his Honour nevertheless held against the claimof state immunity. No specific exception was identified, so much as a number offactors which together meant, for public policy reasons, that it was appropriate for theforum country to reject the claim. Richardson J acknowledged such a step could onlybe justified:11where the impugned activity, if established, breaches a fundamental principleof justice or some deep-rooted tradition of the forum state.[34] His Honour then observed:12There must be other cases where the alleged conduct of the foreign state isdirected in a real sense against the forum state or so directly affects it and isso outrageous that the protection international law would otherwise give to theforeign state in matters properly within the jurisdiction of the forum stateshould not be allowed. The due imposition and collection of taxes isfundamental to the functioning of government Defrauding the publicrevenue strikes at the heart of government. It would be indefensible for afriendly state to be party to an attempt to evade or abuse our tax laws.[35] Before considering comments by the other members of the Court, it can beobserved that the crux of the plaintiff's position is found in this judgment. There aretwo aspects that are emphasised – the ability of the forum state (New Zealand) todecide whether to recognise state immunity in a particular case, and secondly, thatsuch a decision is driven by public policy considerations. In the present case Mr Batesemphasises this is New Zealand's commitment to fundamental human rights and its11 Davison, above n 8, at 305.12 At 306.endorsement of various international human rights documents and declarations. Thepublic policy imperative here is the access to justice of a New Zealand citizen, avulnerable woman, working abroad but still in the service of the Royal New ZealandNavy.[36] Turning to other members of the Court, Cooke P, whilst considering theactivity was commercial, observed in relation to an iniquity exception:13Having had the advantage of reading in draft the judgment of Richardson J,with much of which (particularly the concluding part) I am in sympathy, I addsome brief comments on what my brother calls the iniquity factor. In thepresent era of civilisation and international law I should think that a Courtwould be going too far if it were to allow a general exception of iniquity tothe doctrine of sovereign immunity. The invasion of Kuwait was treated asiniquitous by the United Nations and no doubt was so regarded by manycountries, yet in the Kuwait Airways case the House of Lords heldunanimously that the seizure of Kuwait civil aircraft was protected bysovereign immunity. On the other hand, as noted in the American LawInstitute's Restatement of The Law The Foreign Relations Law of the UnitedStates (1987), vol 1, s 461c, "In principle, a foreign state is responsible forviolations of domestic law by terrorist acts committed by its agents". Theassassination case of Letelier v Republic of Chile 488 F Supp 665 (DDC, 1980)is one of the supporting authorities cited.One can speculate that the law may gradually but steadily develop, perhapsfirst excepting from sovereign immunity atrocities or the use of weapons ofmass destruction, perhaps ultimately going on to except acts of war notauthorised by the United Nations. But this is [to] peer optimistically into thefuture far beyond the bounds of anything falling to be decided in the presentjudicial review proceedings. The maxim festina lente is in point, and whilefounding on public interest I prefer to confine the reasoning in this judgmentto issues of tax avoidance or evasion under investigation by a nationalcommission of inquiry.[37] Reference should next be made to this passage from Henry J:14In his judgment Richardson J gives his reasons for concluding that publicpolicy here requires rejection of the claim to sovereign immunity by reason ofthe inequity factor. There is in my respectful view merit in the line ofreasoning adopted in that judgment. Whether or not this Court should nowaccept a broad principle of iniquity as affecting and possibly overriding thetraditional concept of sovereign immunity – which would be a developmentbeyond that now accepted under the "restricted" theory – is debateable.However in my opinion there are compelling reasons for excluding thedoctrine of sovereign immunity, even if the restrictive theory did not apply,without offending current concepts of international law. This case isconcerned with the functions of a commission of inquiry whose terms of13 At 290.14 At 309.reference require investigation into the Winebox transactions and the need forchange to criminal or tax law to protect New Zealand's tax base from fraudand evasion. There is evidence presently before the commissioner to supporta contention that some of the transactions may have defrauded theNew Zealand revenue or provided a means for evading tax. The foreign stateis said to have been instrumental in a significant way in assisting New Zealandtaxpayers to that end. The persons sought to be examined, and the documentssought to be inspected are all in New Zealand. In those circumstances, publicpolicy requires disclosure, not frustration of the objects of the Commission ofInquiry. Principles of international comity do not in my opinion requireotherwise.[38] Finally, Thomas J agreed that the commercial exception was engaged.15However his Honour then articulated what he suggested was a preferable approach todeciding issues of state immunity.16 It was also very much a public policy analysis.[39] Three observations can be made about Davison. First, the majority decision isan orthodox application of existing state immunity law. Second, the Court is in someways anticipating a development in the doctrine of state immunity which, as will bediscussed shortly, has not really happened. Such exceptions for fundamental valuesbeing definitively recognised have occurred by way of legislation – for example, theUnited States and more latterly Canada have enacted a limited terrorism exception.Finally, it is clear that the Court was very much influenced by the fact that it wasactivity by the Cook Islands Government itself that was being investigated. Theforeign state's conduct could be seen to have been directed specifically against theNew Zealand tax base, and it was that which made a claim of state immunityunacceptable.[40] Although, as Mr Bates traverses, there is much writing contending for a humanrights type exception, the decided cases are against it. The most authoritative rejectionis a recent decision of the International Court of Justice in Jurisdictional Immunitiesof the State (Germany v Italy).17 There, some citizens of Italy who had not otherwisehad redress for the atrocities committed upon them during the War sought to bringcivil action in the Italian courts. The Italian courts accepted jurisdiction and Germanyappealed successfully to the International Court of Justice.15 At 311–312.16 At 313.17 Jurisdictional Immunities of the State (Germany v Italy: Greece intervening) (Judgment) [2012]ICJ Rep 99.[41] In upholding Germany's claim to state immunity, the Court emphasised thatstate immunity is a rule of customary international law. The significance of this is thatit undermines the proposition that New Zealand, under the rubric of the common law,could develop its own contrary jurisprudence. As to the scope of the decision, it isconvenient to cite the Court's articulation of the unsuccessful argument advanced byItaly:18That said, the Court must nevertheless inquire whether customaryinternational law has developed to the point where a State is not entitled toimmunity in the case of serious violations of human rights law or the law ofarmed conflict. Apart from the decisions of the Italian courts which are thesubject of the present proceedings, there is almost no State practice whichmight be considered to support the proposition that a State is deprived of itsentitlement to immunity in such a case. (emphasis added)[42] It can be seen that what was in issue is the same argument as is being madehere by the plaintiff. The Court continued:19In addition, there is a substantial body of State practice from other countrieswhich demonstrates that customary international law does not treat a State'sentitlement to immunity as dependent upon the gravity of the act of which itis accused or the peremptory nature of the rule which it is alleged to haveviolated.That practice is particularly evident in the judgments of national courts.Arguments to the effect that international law no longer required Stateimmunity in cases of allegations of serious violations of international humanrights law, war crimes or crimes against humanity have been rejected by thecourts in Canada (Bouzari v. Islamic Republic of Iran, Court of Appeal ofOntario, [2004] Dominion Law Reports (DLR), 4th Series, Vol. 243, p. 406;ILR, Vol. 128, p. 586; allegations of torture), France (judgment of the Court ofAppeal of Paris, 9 September 2002, and Cour de cassation, No. 02-45961,16 December 2003, Bulletin civil de la Cour de cassation (Bull. civ.), 2003, I,No. 258, p. 206 (the Bucheron case); Cour de cassation, No. 03-41851,2 June 2004, Bull. civ., 2004, I, No. 158, p. 132 (the X case) and Cour decassation, No. 04-47504, 3 January 2006 (the Grosz case); allegations ofcrimes against humanity), Slovenia (case No. Up-13/99, Constitutional Courtof Slovnia; allegations of war crimes and crimes against humanity),New Zealand (Fang v. Jiang, High Court, [2007] New Zealand AdministrativeReports (NZAR), p. 420; ILR, Vol. 141, p. 702; allegations of torture), Poland(Natoniewski, Supreme Court, 2010, Polish Yearbook of International Law,Vol. XXX, 2010, p. 299; allegations of war crimes and crimes againsthumanity) and the United Kingdom (Jones v. Saudi Arabia, House of Lords,[2007] 1 Appeal Cases (AC) 270; ILR, Vol. 129, p. 629; allegations of torture).18 At [83], emphasis added.19 At [84] and [85], emphasis added.[43] Given the numerous references here to decisions in other countries, it isunnecessary to explore in depth the relevant authorities. However, it can be noted thatPavoni contends that the Court could have drawn further support from a line ofdecisions in the United States of America,20 starting with the Supreme Court decisionin Amerada Hess.21 There the allegations concerned the use of force by Argentina inrelation to a neutral commercial vessel in international waters. The Court affirmedthat exceptions to state immunity were limited to those now prescribed by statute,thereby limiting the ability to develop a human rights law exception.22[44] The plaintiff seeks to limit the applicability of the ICJ decision in JudicialImmunities of the State to cases involving armed conflicts, but in my view it is of widerimpact. The passages cited at [41] and [42] make plain the context being considered.One further passage that is illustrative of the Court's thinking can be cited:23At the outset, however, the Court must observe that the proposition that theavailability of immunity will be to some extent dependent upon the gravity ofthe unlawful act presents a logical problem. Immunity from jurisdiction is animmunity not merely from being subjected to an adverse judgment but frombeing subjected to the trial process. It is, therefore, necessarily preliminary innature. Consequently, a national court is required to determine whether or nota foreign State is entitled to immunity as a matter of international law beforeit can hear the merits of the case brought before it and before the facts havebeen established. If immunity were to be dependent upon the State actuallyhaving committed a serious violation of international human rights law or thelaw of armed conflict, then it would become necessary for the national courtto hold an enquiry into the merits in order to determine whether it hadjurisdiction. If, on the other hand, the mere allegation that the State hadcommitted such wrongful acts were to be sufficient to deprive the State of itsentitlement to immunity, immunity could, in effect be negated simply byskilful construction of the claim.20 R Pavoni "An American Anomaly? On the ICJ's Selective Reading of United States Practice inJurisdictional Immunities of the State" (2011) Italian Yearbook of International Law 143.21 Argentine Republic v Amerada Hess 488 US 428 (1989).22 The strongest support for a fundamental human rights exception are the minority opinionsexpressed in the European Court of Human Rights in Al-Adsani v United Kingdom (2002) 34EHRR 11 (ECHR).23 Jurisdictional Immunities, above n 17, at [82].[45] Finally in relation to the decided decisions, it can be noted that in the list citedby the International Court of Justice is the New Zealand decision Fang v Jiang.24 Inthat case 11 Chinese nationals, now residents of New Zealand, brought proceedingsagainst members of the government of the People's Republic of China alleging theywere tortured.[46] Recognising the absence of any domestic legislation, Randerson J consideredthe issue of state immunity was governed by international law. After traversingvarious authorities, his Honour concluded that allegations of torture did not give riseto an exception to state immunity. Randerson J further rejected the proposition thatNew Zealand should take a different course:25In that respect, I do not accept Mr Lawrence's proposition that New Zealandis free to "develop" an exception to the well-recognised immunity principlesin a way similar to that adopted by Courts in respect of domestic or state law.International law necessarily develops and evolves over time (see thediscussion in Lai v Chamberlains [2007] 2 NZLR 7 (SCNZ) at paras [1] and[2] of the judgment of Elias CJ, Gault and Keith JJ and the observation of thePrivy Council in Re Piracy Jure Gentium [1934] AC 586 at p 597 thatinternational law has not become a crystallised code at any time, but is a livingand expanding branch of the law. But New Zealand's common law on thissubject will usually be reflective of international law gathered from theestablished sources of international practice, treaties, conventions, judicialdecisions and scholarly writings.[47] For several reasons the plaintiff's case against the availability of stateimmunity cannot succeed. First, there is at common law no recognised exception tostate immunity for allegations of breaches of fundamental human rights. Stateimmunity is a rule of international law which does not recognise such an extension.Second, in my view, Davison does not empower the recognition of such an exception.It was a case in which the commercial exception was held to apply, and the Court didnot have before it allegations of this type.[48] Third, if such an exception could potentially apply, I do not accept the presentalleged facts would engage it. It is invidious to seek to place alleged offending of thistype on a spectrum, but the plaintiff calls in aid concepts such as torture and so someanalysis is required. The label of torture is not sustainable in this case. Torture is24 Fang v Jiang [2007] NZAR 420 (HC).25 At [69].traditionally defined to include a purpose requirement. The alleged torturous conductmust have been inflicted to achieve a further purpose – to extract a confession or otherinformation; to punish, to intimidate or coerce.26 The definition of torture in Article 1of the United Nations Convention against Torture contains a purpose component.27No such motivation is alleged here.[49] I do accept, however, that at an interlocutory stage the labels of cruel anddegrading treatment are available. Degrading conduct is conduct that "gravelyhumiliates and debases the person subjected to it, whether or not that is its purpose."28It is difficult to contend that the act of rape does not at least engage the concept. Inthe end whether the label is appropriate is a fact specific assessment having regard toall the established circumstances. That said, I have not been persuaded that anyexception for allegations of breaches of fundamental human rights would encompassall allegations of cruel and degrading treatment. That is not to ignore that any breachof s 9 of the New Zealand Bill of Rights Act 1990, which guarantees the right not tobe subject to such treatment, is of "great seriousness". But given the competing valueof state immunity, it is in my view likely that any exception would arise incircumstances of more systemic state sponsored violations of human rights than thatwhich is alleged here.[50] I finally observe that upholding state immunity is, in my view, what one wouldexpect to be the outcome. The claims are made against the British government. Theywill require investigation into what happened on British warships and on British navalbases, and will require inquiry into the internal policies and procedures of the RoyalNavy. Acceptance of jurisdiction would not be consistent with the dignity of theforeign state.26 Taunoa v Attorney-General (2004) 7 HRNZ 379 (HC) at [259]. See also the appeal decisionTaunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429. At [171] Blanchard J, forexample, defines torture as the "deliberate infliction of severe physical or mental suffering for aparticular purpose, such as obtaining information".27 United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment orPunishment 1465 UNTS 85 (opened for signature 10 December 1984, entered into force26 June 1987), art 1.28 Taunoa (SC), above n 26, at [171].[51] I accordingly hold that MoD(UK) could successfully object to jurisdiction onthe basis of state immunity. That makes further analysis under r 6.29 unnecessary.However, for completeness I will address the third key issue of the appropriate forum.Issue three – appropriate forumIn considering whether another forum is more appropriate, the Court looks forthe forum with which the proceeding has the most real and substantialconnection. Relevant factors include issues of convenience or expense,availability of witnesses, the law governing the relevant transaction and theplaces where the parties resided or carried on business.We accept that other relevant considerations also bear on the issue ofappropriate forum. These include the cautious approach already discussed tothe subjection of foreigners to the jurisdiction of a New Zealand court;whether other related proceedings are pending elsewhere; whether theNew Zealand court would provide the most effective relief or whether aforeign court is in a better position to do so; whether the overseas defendantswill suffer an unfair disadvantage if a New Zealand court assumesjurisdiction; and any choice of jurisdiction previously agreed by the parties.(Randerson J, Wing Hung Printing v Saito Offshore)29[52] The plaintiff submits the following factors mean her case has the more real andsubstantial connection with New Zealand:(a) X was based in the United Kingdom pursuant to an existing bilateralmemorandum of understanding between the two navies;(b) X wore her New Zealand uniform, and was paid by the RoyalNew Zealand Navy;(c) although subject to the immediate control and disciplinary structures ofthe Royal Navy, X remained subject to the Royal New Zealand Navydiscipline;(d) X is a New Zealand citizen who at all times intended to return toNew Zealand; and29 Wing Hung Printing Co Ltd v Saito Offshore Pty Ltd [2010] NZCA 502, [2011] 1 NZLR 754 at[45]–[46].(e) the damage being claimed focuses on the consequences for X inNew Zealand of what occurred to her.[53] There is validity in these points to the extent that they establish a link, but it isnoticeable they focus on the two end points – how it is X came to be working in theRoyal Navy, and what indirect effects have occurred as a consequence of working inthe Royal Navy. The more obvious starting point for ascertaining where the most realand substantial connection lies is to look at what is said to have happened, who did it,and why the defendant is said to be liable. Those matters have been canvassedpreviously but a brief repetition is appropriate.[54] X alleges two members of the Royal Navy at different times sexually assaultedher while she was working on a Royal Navy ship. She also alleges that while on thisship, and another, and while at a land base in the United Kingdom, she was subject tosystemic and sustained sexual harassment from members of the Royal Navy. It is saidsome senior officers observed the conduct, and others were aware of it. The allegationis that the conduct was condoned by those officers. The Royal Navy is said to belegally liable for the on-going consequences of this conduct being experienced by Xin New Zealand. On a first impression the natural forum for these claims is the UnitedKingdom.[55] In terms of the factors mentioned in the Wing Hung Printing passage:30(a) the liability conduct all occurred in the United Kingdom;(b) the liability witnesses, other than the plaintiff, reside in the UnitedKingdom;(c) those witnesses would be compellable in the United Kingdom but notin New Zealand;30 Wing Hung Printing, above n 29, at [45]–[46].(d) the law of the United Kingdom would be the applicable law to theclaims against MoD(UK) for acts occurring in the United Kingdom;and(e) the subject matter requires an inquiry that is much better suited to acourt of England and Wales.[56] The identified disadvantages X would suffer are the expense and difficulty ofconducting proceedings in England, and the need for two court proceedings given theplaintiff is suing AGNZ in relation to the same events. I accept the former is a validpoint but observe X has chosen, as of course is her right, not to avail herself ofopportunities to alleviate the difficulties. The Royal Navy has referred the matter tothe Royal Navy Police who would investigate if X wished to make a complaint, butshe declines to do so.[57] As for the need for two proceedings, and subject to any decisions made inrelation to the AGNZ claims, I accept it is a factor but in the circumstances do notconsider the choice of the plaintiff to also sue AGNZ in relation to these overseasevents is sufficient to overcome the otherwise overwhelming conclusion that theCourts of England and Wales are the appropriate forum for the claims againstMoD(UK).[58] For these reasons, had it been necessary, I would have concluded that pursuantto r 6.28(5)(d) of the High Court Rules, the Courts of England and Wales were theappropriate forum.[59] The conclusions I have reached make it unnecessary to analyse the otherrequirements under r 6.29. For the record, however, I note that two in particular werethe subject of dispute.[60] First, in relation to claims made in tort, it is necessary for the plaintiff toestablish either that the act or omission occurred in New Zealand (not applicable here)or that "the damage was sustained in New Zealand" (r 6.27(2)(a)). The damage Xclaims is the on-going effects and consequences of what is said to have occurredabroad. The issue requiring resolution is whether this type of damage is sufficient todischarge the onus.[61] If the plaintiff did not succeed in that argument, then an alternative basis forjurisdiction would be to establish that MoD(UK) is a necessary and proper party to theclaims brought against AGNZ. Whether this would be so turns on the viability of thepleading of joint vicarious liability for the battery causes of action. In particularwhether that doctrine applies here at all, and if so whether it is available in the currentsituation. As regards the latter point there would be inevitable focus on whetherAGNZ can be vicariously liable for the acts of persons in the service of the RoyalNavy.[62] The application by the second defendant for an order dismissing theproceedings in relation to all claims against it is granted.Claims against AGNZIntroduction[63] As a consequence of the decision concerning MoD(UK), it is necessary toidentify the nature of the claims remaining, and the relevant context. The plaintiffaccepts that she will not be able to proceed with the battery claims against theNew Zealand government. The plaintiff has also indicated, and I accept it to be so foranalysis purposes, that she will not be instituting proceedings against the UnitedKingdom government in that jurisdiction. Thus all that remains are claims inNew Zealand against AGNZ in negligence, breach of statutory duty and breach ofcontract.31[64] Further, the plaintiff has clarified the focus of those claims. For analysispurposes, I take the description from the plaintiff's written submissions rather than thestatement of claim:3231 There is a further set of "reputational claims" concerning which interlocutory applications havebeen made. They are addressed in a separate ruling.32 When this series of interlocutory applications is finally determined, the plaintiff will need to ensurethe pleading is amended.2.19 Specifically, the RNZN's negligence is alleged to arise entirely withinNew Zealand because the RNZN:i. Failed (i.e. omitted) to make any or any sufficientinvestigations from New Zealand as to the protectionsavailable to the Plaintiff whilst being posted to the RoyalNavy in the UK, from sexual assault and sexual harassment,including training programmes available for Gender Equityand how they were being implemented and monitored andcomplied with (particularly in light of the known highincidence of that type of behaviour in the Armed Forces of theUK).ii. Failed (i.e. omitted) to make any or any sufficient enquiries asto the systems in place to ensure the safety of the Plaintiffwhilst serving in New Zealand uniform when sending her toserve with and be trained by the Royal Navy.iii. Failed (i.e. omitted) to provide sufficient and regular trainingto the Plaintiff when posting her to the United Kingdom onthe topics of harassment, bullying and/or discrimination andtraining in connection with known hazards of stress, sexualharassment and sexual assault in the United KingdomDefence Forces, including the Royal Navy and what to do ifconfronted with sexual harassment.iv. Failed (i.e. omitted) to implement comprehensivemeasurement in reporting systems to monitor theeffectiveness of any sexual harassment policies inNew Zealand or for Naval personnel deployed to the RoyalNavy or elsewhere.[65] The consequence of this focus is that all the proceedings against AGNZ willbe assessed under New Zealand law.[66] Finally by way of scene setting, the analysis should proceed on the basis thatthere will be significant difficulties for both parties in relation to what I will call"Royal Navy evidence", both in terms of witnesses and documentation. For theplaintiff this would bite in relation to establishing what it is the Royal New ZealandNavy would have discovered had it made the inquiries it is said it should have, anddid not. For the first defendant it will affect access to, and availability of, witnessesin relation to the alleged sexual assaults and incidents of sexual harassment. TheUnited Kingdom witnesses are not compellable. Further, evidence filed by the firstdefendant from the Royal Navy indicates these witnesses will not be directed by theRoyal Navy to come. Given the nature of the allegations, it can be assumed they willbe unlikely to come voluntarily.[67] Against that background I turn to the two key issues – appropriate forum andwhether there is a jurisdictional bar.Issue one – appropriate forum[68] Throughout the proceeding the first respondent advocated for a hybrid process.It sought a stay of the New Zealand claims to enable determination in a Court ofEngland of Wales of what it termed the United Kingdom claims. These were thebattery claims and the negligence claim against MoD(UK). The United Kingdomclaims also included the battery claim against AGNZ who was alleged to be liable onthe basis of dual vicarious liability.[69] The idea behind the hybrid proceeding was that the factual determinationsmade by the English Court when determining the United Kingdom claims could thenbe carried over as the basis for analysis of the New Zealand claims. To facilitateimplementation, AGNZ indicated he would not claim sovereign immunity in relationto the battery claim, and would undertake to be bound in New Zealand as regards theNew Zealand claims by the factual conclusions of the Court of England and Wales.The advantages of this process were said to lie in the availability of witnesses, inhaving the correct court determine issues of domestic law, and in respecting the comityof nations by avoiding foreign courts inquiring into the internal processes of the other'snavies.[70] A difficulty with this hybrid proceeding, however, is that it is based on anincorrect assumption. There are no proceedings in the United Kingdom and will notbe. The plaintiff has made it plain she will only proceed against the United Kingdomgovernment if she is able to do so in New Zealand. I have dismissed the UnitedKingdom claims and so all there is now are the New Zealand claims. Accordingly, theissue is whether this New Zealand proceeding, involving claims against theNew Zealand government for breaches of duty by the Royal New Zealand Navy,should be directed to be heard in a Court of England and Wales because it is theappropriate forum.[71] For several reasons the answer must be no. First, AGNZ has not satisfied methat absent any parallel United Kingdom proceeding, a hearing in England is possibleor desirable. I received no submissions suggesting it was possible to have apreliminary hearing in England the purpose of which would be to determine somefacts for a New Zealand proceeding. So it must be the whole proceeding that isconsidered.[72] Once one is talking about the full proceeding, then the same concerns discussedin relation to the MoD(UK) claims would apply.33 A Court of England and Waleswould be asked to preside over a case in which the sole defendant was theNew Zealand government, the applicable law was that of New Zealand, and theinquiry was into the actions of the Royal New Zealand Navy. It is not clear to me thatthe waiver of immunity indicated by AGNZ in relation to the hybrid proposal wouldapply to that very different situation.34 Nor do I consider it likely that a Court ofEngland and Wales would accept jurisdiction.[73] Doubts about an available alternative forum aside, for the reasons alreadymentioned the courts of New Zealand are the appropriate forum for the proceeding.That is not to say the proceeding will not have difficulties, but it is difficult to conceivethat a court of another jurisdiction is more appropriate.[74] There are aspects to this situation where it could be argued the plaintiff ismanipulating the process to the first defendant's disadvantage – by not filing her civilclaim in England (where witnesses are compellable), and by not authorising RoyalNavy Police to investigate. However, on further analysis, that is not the position.There can be no obligation on her to sue the United Kingdom government, althoughthe plaintiff was willing to do so if it could be done in New Zealand. If there is atenable claim against the New Zealand government for omissions occurring inNew Zealand (including when on secondment pursuant to an arrangement set in placeby the Royal New Zealand Navy),35 then New Zealand is the correct place to bring33 The same factors from Wing Hung Printing, above n 29, at [45]–[46] as discussed above areappropriate in determining that New Zealand is the appropriate forum here.34 The immunity waiver was made in relation to the joint battery claim.35 This proceeding does not address that issue. It is an element of r 6.29 but other than in relation tothe dual vicarious liability claim, it was not advanced by the respondents as a basis for upholdingthese applications.those proceedings. Further, by no means is all the evidence sourced in the UnitedKingdom. There are allegations about events occurring on New Zealand ships, andthere may be evidence about the Royal New Zealand Navy's approach to arrangementswith friendly navies, and what steps it takes therein.[75] AGNZ raises concerns about the appropriateness of a New Zealand courtinquiring into events involving the Royal Navy. That is a matter better discussed underthe next section dealing with immunity and non-justiciability. For reasons alreadydiscussed, on the forum issue there is not, in my view, an available alternative, and inany event the nature of the claims is such that New Zealand is the appropriate forum.[76] Accordingly, I conclude New Zealand is the appropriate forum for theproceedings against AGNZ.Issue two – jurisdictional bar[77] AGNZ contends that it is not permissible in a New Zealand Court to inquireinto events that occurred on the warship of a foreign state. If correct, it would benecessary to strike out those aspects of the statement of claim. The prohibition wouldnot extend to events allegedly occurring at the Royal Navy land base.[78] That immunity attaches generally to a ship in this way is not in dispute.36 Yet,the extent of the prohibition is less clear. The basic position is expressed by Gill andFleck in this way:3736 See for example, United Nations Convention on the Law of the Sea 1833 UNTS 3 (opened forsignature 10 December 1982, entered into force 16 November 1994), art 32; and ARA Libertad(Argentina v Chad) (Provisional measures) [2012] ITLOS Rep 332 at [95].37 Terry D. Gill and Deiter Fleck The Handbook of the International Law of Military Operations (2nded, Oxford University Press, Oxford, 2015) at [20.10]. See also James Kraska "MilitaryOperations" in Donald R Rothwell and others (eds) Oxford Handbook of the Law of the Sea(Oxford University Press, Oxford, 2015) 866 at 871; R. R. Churchill and A. V. Lowe The Law ofthe Sea (3rd ed, Manchester University Press, Manchester, 1999) at 99; and Sir Robert Jenningsand Sir Arthur Watts (eds) Oppenheim's International Law: Volume I Peace (Parts 2 to 4) (9th ed,Longman, London, 1992) at 1167.The legal status of warships flows from the sovereignty of the State whoseflag they fly warships are platforms operated by a State exclusively fornon-commercial government purposes thus sharing the flag State's sovereignimmunity warships are immune from any exercise of another State'sjurisdiction, especially from arrest or search, whether in national orinternational waters. They are also immune from foreign taxation, and areentitled to exclusive control over persons onboard such vessels with respectto acts performed on board.[79] Although focused on foreign warships, I consider the first defendant'ssubmissions raise not only issues of state immunity, but related issues of act of state,comity between nations, and non-justificiability. I will accordingly consider theAGNZ's claims on two bases – first whether sovereign immunity applies, and secondwhether the doctrine of foreign act of state applies.[80] For the plaintiff Mr Bates, relying on overseas authority but particularly somedecisions of the United Kingdom Courts, argued the AGNZ's position on jurisdictionalbar was untenable. He particularly relied upon Belhaj v Straw38 and Rahmatullah vMinistry of Defence.39 Since the hearing of the appeal, the United Kingdom SupremeCourt has issued its joint judgment in both matters.40 I have not received submissionson that decision but am satisfied it is appropriate to refer to it. In both cases thedecisions under appeal that Mr Bates was relying on were affirmed. It is fair toobserve that on any analysis the recent Supreme Court decision does not assistAGNZ's case.[81] It will be helpful to briefly outline the facts of those two cases so that theirrelevance to the present situation will be apparent. It is to be emphasised that, likehere, the facts are untested.[82] Belhaj: Mr Belhaj and his wife alleged they had been unlawfully taken to Libyain 2004. They were in Beijing and had been deported to Kuala Lumpur. It was allegedthe British Government had alerted the Libyan authorities to their presence in KualaLumpur. By a complex route they ultimately ended up in Libya where they weredetained for many years. It was alleged they suffered mistreatment at various stagesof the journey, and in Libya. The couple brought proceedings in the British Courts38 Belhaj v Straw [2014] EWCA Civ 1394, [2015] 2 WLR 1105.39 Rahmatullah v Ministry of Defence [2014] EWHC 3846 (QB).40 Belhaj v Straw; Rahmatullah (No 2) v Ministry of Defence [2017] UKSC 3, [2017] 2 WLR 456.alleging false imprisonment, trespass to the person, conspiracy to injure, misfeasancein public office and negligence. The defendants were the Foreign Secretary (UK), thehead of the Secret Intelligence Service (SIS), the SIS itself, the Home Office, theForeign and Commonwealth Office, the Security Service, and the Attorney-General.[83] Rahmatullah: Mr Rahmatullah was detained by British forces occupying Iraq.He was eventually passed over to United States forces who subsequently transferredhim to a base in Afghanistan where he was detained for over 10 years without trial orcharge. He alleged mistreatment by both British and United States forces, and broughtproceedings in the United States courts against the same or similar defendants inrelation to their alleged misconduct.[84] The Supreme Court decision analyses claims by the United Kingdomdefendants and held that in both cases the Courts of England and Wales could not, orshould not, inquire into activities by the foreign states. The AGNZ is in effect makingthe same claim here.(a) Sovereign immunity[85] The applicability of sovereign immunity turns on the manner in which theforeign state will be involved. Mr Bates submits, and I accept, that the New Zealandclaims will not place the United Kingdom Government in any legal jeopardy. To usethe words of Lord Mance in Belhaj:41 the legal position of the foreign states, the conduct of whose officials isalleged to have been tortious in the places where such conduct occurred, willnot be affected in any legal sense by proceedings to which they are not party.[86] Lord Mance, as did the other Lords, accordingly rejected the applicability ofstate immunity to those cases where the foreign state was not a party or otherwiselegally affected. I consider the same applies here.41 Belhaj, above n 40, at [31].(b) Foreign act of state[87] The first defendant's submissions emphasise the idea of comity and also referat times to non-justiciability. It is submitted that a New Zealand Court should declineto inquire into the actions and internal workings of the navy of a friendly state. In myview this submission falls to be analysed under the rubric of the foreign act of statedoctrine ("foreign" distinguishes it from a New Zealand act of state). The act of statedoctrine sits alongside state immunity, and contains a set of rules governing situationswhere a domestic court will not inquire into the acts of a foreign state (whethercommitted in the foreign state or elsewhere).[88] In Belhaj, there are three separate judgments which categorise (differently) thesituations when foreign act of state will apply. The majority judgment is that of LordNeuberger with whom Lady Hale, Lord Clarke and Lord Wilson concur. The otherjudgments are those of Lord Mance, and Lord Sumption (Lord Hughes concurring).[89] It is Lord Neuberger who describes the doctrine as having four "rules", anyone of which might cause a domestic court to decline to inquire into a certain matter.Relevant to the present case is Lord Neuberger's third rule:42The third rule has more than one component, but each component involvesissues which are inappropriate for the courts of the United Kingdom to resolvebecause they involve a challenge to the lawfulness of the act of a foreign statewhich is of such a nature that a municipal judge cannot or ought not rule onit. Thus, the courts of this country will not interpret or question dealingsbetween sovereign states Similarly, the courts of this country will not, as amatter of judicial policy, determine the legality of acts of a foreign governmentin the conduct of foreign affairs. It is also part of this third rule thatinternational treaties and conventions, which have not become incorporatedinto domestic law by the legislature, cannot be the source of domestic rightsor duties and will not be interpreted by our courts. This third rule is justifiedon the ground that domestic courts should not normally determine issueswhich are only really appropriate for diplomatic or similar channels (seeShergill v Khaira [2015] AC 359, paras 40 and 42).[90] It can be seen that Lord Neuberger's third rule is targeted at conduct which hasa much higher level of state involvement or political component than is the situationhere. The third rule very much looks at high level activity where it is unlikely that a42 At [123].domestic court would be competent to adjudicate. There can be no suggestion, in myview, that the allegations in the present case would fit within this rule.[91] It is arguable that Lord Mance's formulation of the equivalent rule is broaderin its reach:43The third is that a domestic court will treat as non-justiciable - or, to uselanguage perhaps less open to misinterpretation, abstain or refrain fromadjudicating upon or questioning - certain categories of sovereign act by aforeign state abroad, even if they occur outside the foreign state's jurisdictionThe third type of foreign act of state is not limited territorially. Whether anissue is non-justificable falls to be considered on a case-by-case basis.Considerations both of separation of powers and of the sovereign nature offoreign state or inter-state activities may lead to a conclusion that an issue isnon-justiciable in a domestic court... But in deciding whether an issue isnon-justiciable, English law will have regard to the extent to which thefundamental rights of liberty, access to justice and freedom from torture areengaged by the issues raised.[92] Interestingly, Lord Mance refers to Buttes Gas and Oil Co v Hammer (No 3)as the leading example of this rule.44 The issues in that case, where the act of statedoctrine was applied, very much involved the same high end political and diplomaticissues that Lord Neuberger's description of the third rule entails. Likewise Shergill vKhaira refers to the rule as involving issues "inherently unsuitable for judicialdetermination by reason only of [their] subject matter".45[93] It is also helpful to note that Lord Neuberger described this category or rule asbeing based on judicial self-restraint and as sourced entirely in the common law. Itdoes not have an international law basis but its application in a particular situation canbe heavily influenced by international law.46 This is relevant to the applicability ofBelhaj to New Zealand law.[94] The third judgment is that of Lord Sumption who notes, like Lord Neuberger,that act of state is a subject matter immunity that is wholly the creation of the common43 At [11(iii)(c)] and [11(iv)(c)].44 Buttes Gas and Oil Co v Hammer (No 3) [1982] AC 888, [1981] 3 WLR 787 (HL).45 Shergill v Khaira [2014] UKSC 33, [2015] AC 359 at [41].46 Belhaj, above n 38, at [151].law.47 His Lordship considers the doctrine is founded on the twin principles of comityand separation of powers. The latter principle recognises that "the conduct of foreignaffairs" is a matter for the executive (and not the court).48 Lord Sumption identifiestwo strains to the act of state doctrine:(a) municipal law act of state which holds that domestic courts will notadjudicate on the lawfulness or validity of a sovereign state's acts underthe sovereign state's law. The equivalent rule in the other judgments isexpressed to be limited to property, but Lord Sumption considers itshould extend to injuries to the person; and(b) the international law act of state which holds that domestic courts willnot adjudicate on the lawfulness of the extraterritorial acts of foreignstates in their dealings with other states.[95] Lord Sumption considered both the cases before the Supreme Court were to beanalysed as being claims by the government defendants that the doctrine ofinternational law act of state applied. His Lordship rejected the claim in both cases.[96] It is not necessary to attempt any more refined analysis of the competingapproaches. Recalling that the foreign act of state doctrine is sourced in the commonlaw, and that there is no applicable statutory law in New Zealand, Belhaj if appliedrepresents a complete rejection of AGNZ's submission that the New Zealand courtshould not accept jurisdiction in this case. The lower court decisions relied on beforeme by Mr Bates have been affirmed by the Supreme Court decision. However,recognising that the applicability of the third rule is to be made on a case by case basis,I give brief reasons why I reject its applicability here.47 At [200].48 At [225].[97] First, the effect of AGNZ's analysis is that he would not be subject to any lawas regards responsibility for the alleged wrongs committed on British soil and ship. InNew Zealand, the foreign act of state doctrine, if available, would mean the Courtshould not inquire; in the Courts of England and Wales, a claim of sovereign immunitywould be available to AGNZ to prevent inquiry there too. Here, AGNZ quite properlyindicates that immunity would be waived in those courts, but to accede to the firstdefendant's analysis is to cede the justiciability decision to AGNZ. The ability toinquire would be determined by whether AGNZ chose to waive immunity in a foreigncourt. This consequence of accepting AGNZ's submission means considerablecaution is needed before a Court declines domestic jurisdiction.[98] Second, the plaintiff's pleadings will not require the attribution of any legalstatus to what is said to have occurred in the United Kingdom. All that is required isa determination of what occurred as a matter of fact. Mr Bates had placed considerableweight on this, and the point is reflected in the following passage from LordSumption:49The act of state doctrine does not apply, in either form, simply by reason ofthe fact that the subject-matter may incidentally disclose that a state has actedunlawfully. It applies only where the invalidity or unlawfulness of the state'ssovereign acts is part of the very subject matter of the action in the sense thatthe issue cannot be resolved without determining it. There is no real differencebetween the parties on this point, but it is worth emphasising none the less, forit is of some importance. Some such distinction is essential if the act of statedoctrine is not to degenerate into a mere immunity against internationalembarrassment. The principle is implicit in many of the English cases, but itcan best be illustrated by the decision of the US Supreme Court in WSKirkpatrick & Co Inc v Environmental Tectonics Corpn International, 493 US400 (1990), which is also the case in which it was first clearly articulated. [99] Third, the nature of the acts being inquired into here will not involveconsiderations of such a type that it is necessary for a New Zealand Court to hold itshould not adjudicate on them. The two alleged batteries appear, as pleaded, to be theacts of individuals and largely unconnected with the Navy. That is not to minimisethem but rather to note they are not linked in the pleadings, as I read them, to a systemicflaw. That said, given the claims about a culture of sexual harassment and impropriety,the allegation of such a link would not be unexpected.49 At [240]. It is appropriate to note Lord Mance disagreed with this analysis, at [64].[100] The sexual harassment conduct is said to be the product of a systemic flaw andwould involve embarrassment for the Royal Navy if established. But neither theembarrassment that flows from such events, nor the embarrassment that would attachif members of the Royal Navy are found to have committed the acts of sexual assault,would be sufficient to suggest a Court of New Zealand should decline to inquire intothe plaintiff's allegation as incidental to her claim against AGNZ. Further, for thereasons discussed, I do not consider the allegations that a court would inquire into inthis case came close to the type of foreign state activity that the third rule of the foreignact of state doctrine contemplates.[101] For these reasons, I uphold the plaintiff's application to set aside the firstdefendant's protest to jurisdiction.Conclusion[102] The MoD(UK) protest to jurisdiction is upheld and the claims against it aredismissed.[103] The AGNZ protest to jurisdiction is not upheld.[104] Costs memoranda may be filed if agreement cannot be reached.___________________________Simon France J