Commissioner of Police v Dotcom

[2015] NZHC 761

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-000033 [2015] NZHC 761

BETWEEN

COMMISSIONER OF POLICE

Applicant

AND

KIM DOTCOM First Respondent

BRAM VAN DER KOLK Second Respondent

TWENTIETH CENTURY FOX FILM CORPORATION, DISNEY ENTERPRISES, PARAMOUNT PICTURES CORPORATION, UNIVERSAL CITY STUDIOS PRODUCTION LLLP and WARNER BROS ENTERTAINMENT INC Interested Parties

Judgment:                18 April 2015

JUDGMENT (NO 2) OF COURTNEY J

[Results judgment re: application to vary restraining orders]

This judgment was delivered by Justice Courtney on 18 April 2015 at 3.30 pm

pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date..................................

COMMISSIONER OF POLICE v DOTCOM & ORS [2015] NZHC 761 [18 April 2015]

[1]      In this judgment I make an order varying restraining orders registered under the Mutual Assistance in Criminal Matters Act 1992 (MACMA) in respect of Mr Dotcom’s assets, including government bonds.   The reason for a results judgment only being delivered is that the restraining orders expire today. The reasons for the decision will follow next week.

[2]      In my decision dated 12 March 2015 I varied the restraining orders to allow Mr Dotcom to use up to $700,000 worth of the government bonds.1   That order was intended   to   address   Mr   Dotcom’s   immediate   living   and   legal   expenses. Determination of his application to vary the restraining order to allow him access to the balance of the government bonds was to be determined following further submissions from the parties to this application and also from Coatesville Trustee Services Ltd (CTS), the trustee of the Trust Me Trust.   The position  was been complicated, not only by the further submissions but also by the Commissioner’s

recent application to register a foreign forfeiture order over the restrained assets.

[3]      The Commissioner initially sought to have that application determined before the  restraining  orders  expired.     However,  parties  agreed  last  week  that  the registration application would be heard at a later date on the basis that the interim freezing order granted to the film studios in the civil proceedings would provide adequate protection pending determination of the registration application (subject to amendments to that order).

[4]      On 17 April 2015 I raised with counsel whether the reserved judgment on Mr Dotcom’s application to vary the restraining orders would be rendered otiose upon the expiration of the orders, notwithstanding the agreed position just referred to. Late on 17 April 2015 counsel filed a joint memorandum recording their agreement regarding the effect of the freezing order and amendments to be made to it by way of consent orders. The proposed consent orders would see identified assets (including the currently restrained assets) frozen pending determination of the registration application. To overcome the concern over the status of Mr Dotcom’s application to

vary the restraining orders following the expiration of those orders it is proposed that

1      Commissioner of Police v Dotcom [2015] NZHC 458.

the order amending the freezing order would include a clause allowing the order to be varied as though it were a registered foreign restraining order.

[5]      I have concerns over this approach. There is currently no application in the civil proceedings seeking variation of the freezing order and therefore nothing for the Court to respond to in the form of a judgment. I consider that the preferable course is to deliver this results judgment so that the application to vary the restraining orders is determined prior to the expiration of those orders.

[6]       I therefore order that:

(a)      The restraining orders are further varied to allow Mr Dotcom access to the balance of the government bonds currently restrained to meet reasonable living expenses and legal expenses;

(b)The regime that Potter J put in place for supervising the payment of legal fees by Mr Galbraith QC will continue.

[7]      Reasons for this decision will follow early next week.  I ask that the Registry arrange a telephone conference with counsel as early in the week as possible to

discuss the proposed consent orders.

P Courtney J