Lawyers for America's Cup Event (ACE) rushed back to court after forgetting to ask it to redact a letter which details allegations it is fighting to keep secret from documents it knew were about to
On Wednesday the High Court released a series of documents related to ACE's legal battle with Mayo & Calder, which were previously event delivery partner for next year's America's Cup.
ACE is run from within Team New Zealand's base, with Grant Dalton chief executive of both companies. It has been awarded up to $40 million to put on next year's international sailing regatta.
Mayo & Calder were sacked from ACE after Dalton discovered someone from the company had been acting as a whistleblower providing information to the Ministry of Business, Innovation and Employment (MBIE) and later forensic accountants tasked with investigating.
Documents released by the High Court included a lengthy affidavit from Russell Green, who described himself as a "legal and rules advisor" to Team New Zealand and ACE.
Although parts of the affidavit were redacted at the request of ACE's lawyer, David Bullock of Lee Salmon Long, the version released to the media included a copy of a letter from whistleblowers which Green said "included extremely serious claims of the misuse of public money by the plaintiff and certain of its staff".
Shortly after the Herald approached Team New Zealand for comment on the document, Bullock wrote directly to the Herald, seeking an urgent undertaking not to publish the contents of the letter.
Bullock's letter to the Herald said the inclusion of the affidavit was an oversight, claiming that this "will have been obvious to you".
The release of the documents came more than a week after Justice Matthew Palmer said they could be released, with the delay caused by lawyers for the parties making submissions on what should or should not be redacted.
Bullock's letter to the Herald went on to say that the letter was only provided to the court as part of ACE's attempts to keep it secret.
"This is something known to the Herald because the letter was also in evidence in the proceedings against NZME, with NZME's undertaking that it would not be circulated beyond counsel."
Details of ACE's proceedings against NZME were not shared with journalists at the organisation.
NZME has provided an undertaking not to publish the contents of the letter, to the extent those contents are not already in the public domain, pending resolution of the issue by the court.
ACE and Team New Zealand did not respond to a request for comment on the release of the documents.
Nor have they said how much of Lee Salmon Long's legal work is being covered by taxpayers.
While large parts of the documents released this week were redacted, it discloses that Mayo & Calder have told the court that ACE "did not have a formal board ... to raise issues with which are the subject matter of the protected disclosure".
Court documents also see Mayo & Calder allege that ACE "did not have a clear governance structure, including a constitution".
The documents allege that Mayo & Calder attempted to raise aspects which were contained in their protected disclosure with Dalton and ACE chairwoman Tina Symmans "but those were dismissed by those persons".
ACE is suing Mayo & Calder alleging negligence, breach of the Fair Trading Act, breach of duties as an agent and breach of confidence.
Mayo & Calder has rejected the claims and is counter suing, alleging unlawful termination of agreement.
A report by forensic accountants Beattie Varley concluded that while poor record-keeping at ACE meant that the company's claims could not be objectively verified, they had not seen evidence that public money had been misappropriated.
The report said management and governance of ACE deserved criticism for the lack of contemporary record keeping.
MBIE has said it believes Mayo & Calder's claims were made in good faith.
It is not the first time ACE has used court action to attempt to keep materials about it out of the public record.
In July it rushed to court to seek an injunction preventing an earlier report by Beattie Varley as the Herald prepared to publish its contents.