A The appeal is allowed in part.
B The orders set out at [42](a) and (b) of the judgment under appeal are confirmed.
CThe order requiring discovery of documents is amended by deleting the requirement to discover all information collected by the Government Communications Security Bureau in relation to the first and fourth respondents, their families and any associated individuals, but which the GCSB did not pass on to the New Zealand police.
DWe make no award of costs.

____________________________________________________________________

REASONS OF THE COURT

(Given by O’Regan P)

Table of Contents

Para No

Introduction  [1]
Background  [5]
Extradition  [6]
The present judicial review proceedings:
      the procedural history  [10]
Judgment under appeal  [22]
Procedural difficulty  [24]
Should we defer a decision?  [28]
Issues  [30]
Can claims for damages be attached to judicial
      review proceedings?  [35]
In what circumstances can an additional claim be
      added to a judicial review claim?  [47]
Should the Judge have allowed the joinder of the GCSB
      in this case?  [49]
Discovery order  [53]
Should the Attorney-General on behalf of the GCSB
      have been named as a separate defendant?  [61]
Result and costs  [66]
Final comment  [67]

Introduction

In this appeal, the Attorney-General challenges two interlocutory rulings made by Winkelmann J, the Chief High Court Judge, in proceedings in which the respondents challenge the legality of searches of properties of the first and fourth respondents undertaken at the request of the United States of America under the Mutual Assistance in Criminal Matters Act 1992 (MACMA).
The Attorney-General (sued on behalf of the New Zealand Police) was the original defendant in those proceedings.
The rulings to which this appeal relates are:
(a)the Chief Judge’s decision to join as a defendant to the proceedings the Attorney-General (sued on behalf of the Government Communications Security Bureau (GCSB)) and to grant leave to the respondents to amend their claim to seek declarations about the legality of actions taken by the GCSB and to seek damages against the Police and the GCSB;
(b)the Chief Judge’s decision to order that the GCSB provide discovery of certain documents. This order is challenged in part only.
For ease of reference we will refer to the police and the GCSB as if they were parties sued directly, rather than repetitively referring to the Attorney-General on behalf of each agency. Where the reference to the Attorney-General does not specify the party on…

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 43
Case: [2013] NZCA 43
Decision Date: 7 March 2013

CaseChat Overview and Summary

In this appeal, the Attorney-General challenges two interlocutory rulings made by Winkelmann J in proceedings in which the respondents challenge the legality of searches of properties of the first and fourth respondents undertaken at the request of the United States of America under the Mutual Assistance in Criminal Matters Act 1992. The rulings to which this appeal relates are: (a) the Chief Judge’s decision to join as a defendant to the proceedings the Attorney-General (sued on behalf of the Government Communications Security Bureau (GCSB)) and to grant leave to the respondents to amend their claim to seek declarations about the legality of actions taken by the GCSB and to seek damages against the Police and the GCSB; (b) the Chief Judge’s decision to order that the GCSB provide discovery of certain documents. This order is challenged in part only. The Court held that the appeal should be allowed in part, with the orders set out at [42](a) and (b) of the judgment under appeal being confirmed. The order requiring discovery of documents is amended by deleting the requirement to discover all information collected by the GCSB in relation to the first and fourth respondents, their families and any associated individuals, but which the GCSB did not pass on to the New Zealand police. The Court held that there is no absolute rule against including claims for damages in judicial review proceedings, but that the objective of dealing with judicial review proceedings in the way that is most convenient and expeditious will provide reason for a High Court Judge to be cautious about allowing the expansion of a judicial review claim by the addition of a claim for damages. The Court considered that in the present case, the proceedings had expanded to a point where there was a degree of complexity and a level of factual dispute that was undesirable in relation to a judicial review claim, but that it would not be appropriate for the Court to intervene in the Chief Judge’s management of the High Court proceeding. The Court held that the appeal against the discovery order was valid, because there was no live and pleaded issue to which the discovery could be said to relate. The Court held that the Attorney-General on behalf of the GCSB should have been named as a separate defendant, rather than as an additional party.

Orders