Retired senior judge warns squadron he’ll sue if it takes America’s Cup offshore

A retired appellate judge, who early in his career was instrumental in preventing the All Blacks from touring South Africa in 1985, has put Royal New Zealand Yacht Squadron on notice that he will sue it if it allows the America’s Cup defence to be taken offshore.

Sir Edmund Thomas, who briefly served as a judge on the Supreme Court, also indicated he could use the discovery process to examine the relationship between the squadron, Team New Zealand and its chief executive, Grant Dalton.

While the next venue for the America’s Cup is yet to be determined, both the squadron and Team New Zealand have made a series of claims that they are unlikely to be able to fund a credible defence in New Zealand.

On December 7, the Herald revealed that Dalton had told RNZYS members who were agitating to force the defence to be held locally, that the syndicate could collapse within months and be placed into liquidation if it was not able to take it offshore.

The Herald report prompted Sir Edmund to write to RNZYS chief executive Hayden Porter, asking him to inform its office holders that they were on notice that he was prepared to take them to court.

Sir Edmund, widely known simply as “Ted”, told Porter that it was “difficult to accept” the reported claims given the success of Team New Zealand in defending the America’s Cup in March.

“I believe that the defence of the Cup should take place in New Zealand. The public interest is involved, and I would wish to promote the public interest.”

A former Russell McVeagh partner who became a QC in 1981, he later became a judge, serving on the Court of Appeal between 1995 and 2001. He was brought out of retirement in 2005 to be an acting judge on the Supreme Court in 2005.

Sir Edmund is also a former director on the board of the Reserve Bank of New Zealand.

Arguably his most famous case came in 1985, when he represented a group of Auckland club rugby players who wished to stop the All Blacks from touring apartheid South Africa in 1985, using the argument that doing so would not promote the good of rugby.

While the substantive hearing on the case was never completed, a judge granted an interim injunction preventing the players from leaving, which ended the tour.

In his letter to the squadron, Sir Edmund referenced the proceedings, saying a move to take the cup overseas was also likely to breach the deed of gift which established the rules for the world’s oldest international sporting trophy, and the squadron’s own rules.

“I am of the view that similar proceedings would be viable to stop any attempt by the RNZYS to hold the defence of the Cup at an overseas venue. I would have no hesitation in initiating such proceedings. Indeed, I have already taken steps to arrange for a firm of solicitors to be the solicitors on the record.”

Former Team New Zealand director Jim Farmer QC earlier issued a broadly similar warning if Team New Zealand named Saudi Arabia. Sir Edmund’s warning, which included a suggestion the RNZYS should get legal advice, appeared to raise the risk of legal action the America’s Cup was held anywhere other than New Zealand.

The letter also appeared to contain a warning for Dalton that his relationship with the syndicate – and the squadron – would be examined as part of the proceedings.

“I will wish, through discovery, to explore further the relationship between the RNZYS and Team New Zealand/Dalton,” Sir Edmund wrote.

“On the face of it, the delegation of the Squadron’s powers to that entity (and Dalton) go well beyond the Squadron’s lawful bounds. What may have been appropriate (and legal) when challenging for the Cup is not necessarily appropriate (and legal) when the Squadron is the holder of the Cup.”

Thomas, who is not a member of the squadron, declined to comment when approached by the Herald about the letter, which was dated December 7.

In a statement, Porter said the squadron had not replied to the letter.

“We do not respond to unsolicited advice from people who are not members.Our view is that Sir Edmund Thomas’ advice is based on an incomplete and/or inaccurate set of facts and does not reflect the current circumstances.”

The squadron was working with its external solicitors to ensure that it fully complied with its duties and obligations under the Deed of Gift,” Porter said, with the protocol agreed with challenger of record Ineos.

“The introduction of the Protocol, with mutual consent of the Defender and Challenger, will now govern the staging of AC37. The terms of the Deed only then apply if there is an absence of mutual consent.”

Team New Zealand said its response “simply mirrors that of the RNZYS with whom we are totally aligned”. It did not respond to questions about Sir Edmund’s warning that it may examine the relationship between the team, Dalton and the squadron.

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