Yachting NZ Inc v Birkenfeld
IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
CIV 2005-404-438
BETWEEN YACHTING NEW ZEALAND INCORPORATED
Plaintiff
AND KIMBERLEY BIRKENFELD
Defendant
AND all other persons claiming or being entitled to claim damages by reason of or arising out of the collision between the defendant and a rigid inflatable boat owned by the plaintiff on 8 August 2002 near Glyfada, Greece
Hearing: 16 June 2005
Appearances: N Beadle for Plaintiff
No appearance for Defendant
Judgment: 17 June 2005
JUDGMENT OF SIMON FRANCE J
This judgment was delivered by Justice Simon France on 17 June 2005 at 11.30 a.m. pursuant to r540(4) of the High Court Rules 1985.
Solicitors: Phillips Fox, Solicitors, Auckland (Fax: +64-9-303 2311)
And to: Ms Kimberly Birkenfeld, Miami, USA (Fax: + 1-305-854 5906)
[1] This is an application to transfer proceedings to the Wellington Registry.
Background
[2] Ms Birkenfeld is the plaintiff in a claim for damages filed in Admiralty in the Wellington High Court. Ms Birkenfeld was in Greece in August 2002 training for the Greek Olympics. She was a world ranked board sailor from the United States of America. Whilst out sailing she was involved in an accident with a rigid inflatable boat being controlled by Bruce Kendall, a well known New Zealand sailor.
[3] As a result of the accident the plaintiff was severely and permanently injured. She was unconscious and thereafter in a coma for about a month. She underwent emergency surgery and has long term effects, including being an “incomplete quadriplegic” (the description used in the defendant’s statement of claim on the initial proceedings).
[4] The proceedings are brought by Ms Birkenfeld against Mr Kendall, Yachting New Zealand and the International Sailing Federation Limited.
[5] In separate, but related, proceedings, Yachting New Zealand filed a Notice of Motion seeking a limitation decree pursuant to Rule 792 of the High Court Rules and Part VII, Maritime Transport Act 1994. The proceeding was filed in Admiralty in Personam in the Auckland Registry.
[6] Ms Birkenfeld applies to have it transferred to Wellington.
Circumstances applying to hearing
[7] Ms Birkenfeld was once represented by New Zealand counsel. Counsel withdrew and Ms Birkenfeld has not replaced him. She could not herself be present for the application. She resides in the United States and is disabled. Ms Birkenfeld offered to be available to answer questions by fax. On my instructions the Court declined to proceed that way, as I considered the basis of the application was sufficiently clear and there were no questions I wished to put.
[8] For the hearing Ms Birkenfeld has filed:
a) a Notice of Application to transfer the proceedings to the Wellington High Court;
b) an affidavit in support dated 18 May 2005;
c) a Memorandum of Appearance dated 6 June 2005 as a “Defendant in Pro Se”;
d) a Notice of Opposition to the motion seeking limitation decree;
e) a reply to the plaintiff’s opposition to a change of venue. The reply, dated 8 June 2005, consists of:• a newspaper extract from the New Zealand Weekend Herald on 16-17 August 2003, which records the existence of the proceedings;
• an affidavit from Dr Jerome Rogoff, psychiatrist, in support of the application;
• a further affidavit from Dr Rogoff, dated two days later, which appears identical;
• an “affidavit” of George Nottis of Athens Greece, which seems to be a record of Mr Nottis’ assessment of what happened in Greece;
• an extract from the Yachting New Zealand website which says that George Nottis is the local logistics and liaison expert employed by Yachting New Zealand to assist them establish their Olympic base in 2004 (i.e. two years after the accident);
• correspondence from Ms Birkenfeld to her previous counsel detailing her instructions concerning the limitation proceedings;
• an “e-ticket” receipt for travel by Ms Birkenfeld from Miami to Wellington in April 2005.
[9] The plaintiff opposes the transfer application. It has filed a Notice of Opposition and affidavits. Mr Brennan is the Chief Executive Officer of the plaintiff and confirms its registered office is in Takapuna and it conducts all its business from there.
Basis for application and opposition
[10] Ms Birkenfeld states, and offers evidence, that she suffers from Post Traumatic Stress Disorder. Dr Rogoff confirms this, whilst noting that the source of the disorder is uncertain. It seems to have arisen subsequent to the accident and as something that occurred in the rehabilitation process. Dr Rogoff explains that Ms Birkenfeld considers Wellington to be neutral territory. By that is meant it is not the hometown and base of the people she is suing. She fears for her safety in Auckland, believing that the popularity of Mr Kendall will mean that, because of her proceedings, she will be a victim of public harassment. Dr Rogoff notes that, whatever the basis for this belief, it is genuinely felt and that accordingly any proceedings in Auckland will be detrimental to her.
[11] The Notice of Opposition for the plaintiff records the grounds for opposition as being:
a) the plaintiff resides in Auckland;
b) the defendant resides in Miami;
c) the case has no connection with any place in New Zealand, other than Auckland;
d) all the evidence in the limitation decree proceedings will be by affidavit.
Discussion
[12] The limitation decree proceedings are brought under Rule 792. That Rule provides, inter alia, that the person seeking relief is to be the plaintiff in the proceedings which are to be in the form of an Admiralty action in Personam. The Rule provides for who must be named as a defendant to the proceedings.
[13] It is clear that the proceedings are separate, albeit related, proceedings. The plaintiff is entitled to file them in Auckland, there being no connection to any other office of the High Court in New Zealand. The defendant resides overseas and has no New Zealand counsel, and the incident occurred in Greece.
[14] Accepting for the purposes of this decision all that the defendant says, I conclude that there is no basis on which to transfer these proceedings to Wellington. The proceedings will be based on affidavit evidence. There is no present indication that the defendant will seek to appear personally. What has happened to the defendant is in anyone’s assessment a tragedy. Reasonable accommodations will no doubt be made to reflect her situation. However, there is no reason to transfer this proceeding. The defendant has indicated to the Court that she is not appointing New Zealand counsel by choice, rather than through an inability to do so. It is a matter for her, but I do suggest that she reconsider her position in relation to that. From a distance it seems an obvious way in which she might minimise the stress on her.
[15] In the circumstances, I decline the application. I note for the record that I did not seek or receive submissions from Mr Beadle other than to clarify for myself aspects of the procedure attaching to these applications, and to ascertain the plaintiff’s position as regards costs.
[16] It is appropriate to record that Mr Beadle indicated that the plaintiff will be receptive to any suggestions as to the manner in which the defendant might “attend” the limitation decree proceedings. The idea of facsimile contact was raised for this hearing; I am unsure as to the utility of that, other than to obtain an answer to a missing piece of information. However, I record the plaintiff’s position so that Ms Birkenfeld is aware of it. No doubt she can contact the plaintiff or the Court if she has a specific suggestion or request.
[17] Mr Beadle sought an award of costs. This submission was put in a properly restrained way and indicated that from the plaintiff’s viewpoint an award of costs at this point may serve to reinforce the need to avoid extra unnecessary steps in the proceedings. He related it also to the absence, as he sees it, of any real defence to limitation decree proceedings. If I were minded to award costs I would have provided Ms Birkenfeld with an opportunity to file submissions. However, I consider the appropriate course at this stage is to reserve the costs of this application. They can be considered in the context of any costs award made on the substantive limitation decree proceedings.
[18] The application to transfer the proceedings is declined.