The Northern Territory Court of Appeal has upheld an appeal by the United States of America in respect of an assertion of immunity from suit by members of its own military: United States of America v Williamson [2024] NTCA 6.
The matter involved a claim by a marine who was injured on base while stationed in the Northern Territory, and claimed damages against a number of different defendants including the United States.
The case turned on the construction of section 13 of the Defence (Visiting Forces) Act 1963 and the scope of the immunity recognised by the phrase “with respect to… the terms of a person’s service as a member of a visiting force”.
In a unanimous decision the North Territory Court of Appeal held at [37]:
In cases where service members are injured in the line of duty regardless of whether they are injured as a result of a failure of military equipment, medical negligence at a hospital on base, or a failure of equipment used on a base for the day to day maintenance, victualling, and accommodation of visiting forces the presence of the visiting force in Australia by consent, ought not be construed as also providing an implied consent on the part of the sending state to the Australian court’s jurisdiction on questions such as the due discharge of orders, the failure of commanding officers, or the compensation owed by the foreign state to its injured service members. Both statutory interpretation and the application of customary international law require that such matters between service members and the foreign state which they serve are to be resolved by the law of the foreign state and that the foreign state is immune from the exercise of local adjudication.
Philip Santucci appeared for the United States of America, led by Christopher Ward SC.
The case has been the subject of reporting by the ABC here.
See the Judgment here.
