Attorney-General v Dotcom - [2013] NZCA 488

IN THE COURT OF APPEAL OF NEW ZEALAND

CA420/2013
[2013] NZCA 488

BETWEEN

HER MAJESTY’S ATTORNEY‑GENERAL
Appellant

AND

KIM DOTCOM
First Respondent

FINN BATATO
Second Respondent

MATHIAS ORTMANN
Third Respondent

BRAM VAN DER KOLK
Fourth Respondent

Hearing:	10 October 2013 (by Teleconference)
Court:	Randerson, White and French JJ
Counsel:	D J Boldt for Appellant P Davison QC, W Akel and H Steele for First Respondent G J Foley for Second, Third and Fourth Respondents
Judgment:	15 October 2013 at 3:00pm

JUDGMENT OF THE COURT

AThe application by the respondents to extend time for filing a memorandum pursuant to r 33(1) of the Court of Appeal (Civil) Rules 2005 is dismissed.
B Costs are reserved.

____________________________________________________________________

REASONS OF THE COURT

(Given by Randerson J)

Introduction

By a judgment delivered on 28 June 2012,[1] Winkelmann J, Chief High Court Judge, found that three search warrants executed on 20 January 2012 at properties owned or associated with the respondents were invalid. In a subsequent judgment issued on 31 May 2013,[2] the Chief Judge affirmed the findings of invalidity and granted relief to the respondents arising from the finding of invalidity.
[1]Dotcom v Attorney-General [2012] NZHC 1494; [2012] 3 NZLR 115.
[2]Dotcom v Attorney-General [2013] NZHC 1269.
The Attorney-General has appealed against the judgment of 31 May 2013 together with those parts of the earlier decision affirmed therein. Relevantly, for present purposes, the Attorney-General appeals against the finding that the search warrants were invalid. The appeal is to be heard in this Court on 28 November 2013.
On 30 September 2013 the respondents filed an application for an order extending the time for the filing of a memorandum under r 33(1) of the Court of Appeal (Civil) Rules 2005 (the Rules). The respondents seek to support the judgment under appeal on other grounds. If a respondent wishes to support the judgment on other grounds, the Rules require the respondent to file a memorandum setting out the ground relied upon within ten working days after the date on which the notice of appeal is served.[3] The appeal was filed on 28 June 2013 and, we assume, was served promptly thereafter. The application is therefore well out of time.
[3]Rule 33(1) and (2) of the Court of Appeal (Civil) Rules 2005.
The respondents seek to support the judgment on the ground that, when applying for the warrants, the New Zealand Police did not disclose material facts to the District Court Judge who issued the warrants. As such, the respondents contend that there was a non-disclosure which is a further ground upon which the search warrants were unlawful.
The respondents seek to contend that the material facts not disclosed to the District Court Judge were:
(a)The Government Communications Security Bureau had been intercepting the respondents’ communications since at least 16 December 2011.
(b)The first respondent’s property had been under surveillance by way of a camera installed by the New Zealand Police on an adjacent or nearby property, without a search warrant…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Attorney-General v Dotcom

Details

AGLC: Attorney-General v Dotcom [2013] NZCA 488
Case: [2013] NZCA 488
Decision Date: 15 October 2013 at 3:00pm

CaseChat Overview and Summary

The Court of Appeal of New Zealand dealt with an application by the respondents to extend the time for filing a memorandum in support of an appeal against a decision of the High Court which had found search warrants executed on properties associated with the respondents to be invalid. The appeal was brought by the Attorney-General against the decision of the Chief High Court Judge that the warrants were invalid. The respondents sought to extend the time to file a memorandum in order to support the judgment on the ground that the New Zealand Police had not disclosed material facts to the District Court Judge who issued the warrants, rendering them unlawful. The Attorney-General opposed the application on the grounds that the new ground was outside the proper scope of the rule and that it would be procedurally complex and time-consuming to consider the new ground in the absence of any findings in the lower court.

The Court of Appeal held that the respondents' application fell outside the proper scope of the rule in question. The rule is intended to enable a respondent to support the decision under appeal on grounds other than those relied upon by the judge in the lower court, but any such ground must fall within the proper scope of the pleadings in the lower court. The rule does not permit the raising of a new ground in support of the appeal that was neither pleaded nor raised in the lower court. The Court of Appeal also found that the respondents' application was akin to an appellant seeking to amend the grounds of appeal, and that evidential difficulties would arise if the application was granted. The Court of Appeal dismissed the respondents' application to extend the time to file a memorandum.

In summary, the Court of Appeal dismissed the respondents' application to extend the time to file a memorandum, finding that the new ground they sought to raise was outside the proper scope of the rule and that evidential difficulties would arise if the application was granted.

Orders