Dotcom v Attorney-General - [2018] NZHC 653

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-003103

[2018] NZHC 653

BETWEEN
KIM DOTCOM

First Plaintiff

MEGAUPLOAD LIMITED

Second Plaintiff

AND

THE ATTORNEY-GENERAL (on behalf of the Crown in right of New Zealand)

First Defendant

THE ATTORNEY-GENERAL

Second Defendant

THE ATTORNEY-GENERAL (on behalf of Crown Law Office)

third Defendant

THE UNITED STATES OF AMERICA

Fourth Defendant

THE ATTORNEY-GENERAL (on behalf of New Zealand Police)

Fifth Defendant

Hearing: (On the papers)

Counsel:

R M Mansfield and S L Cogan for Plaintiffs

M J Lillico, F R J Sinclair and Z Fuhr for Defendants

Judgment:

11 April 2018

JUDGMENT OF VENNING J

(Application to defer the filing of a statement of defence)

This judgment was delivered by me on 11 April 2018 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………
Solicitors: Anderson Creagh Lai, Auckland
Crown Law, Wellington

Counsel: R M Mansfield/S L Cogan, Auckland

DOTCOM v THE ATTORNEY-GENERAL [2018] NZHC 653 [11 April 2018]

Introduction

[1] Mr Dotcom and Megaupload Limited sue the Attorney-General (in various capacities) and the United States of America (USA). They seek damages for amounts to be particularised prior to trial.

[2] The defendants’ statements of defence were due to be filed by 26 February 2018. On 15 February the defendants filed a memorandum seeking an adjournment of the proceedings pending the outcome of the decisions of the Court of Appeal in two appeals pursued by Mr Dotcom.

[3] In a minute issued on 1 March 2018 the Court indicated it was not prepared to deal with the matter by way of memorandum and required a formal application to be filed. The defendants then filed a formal application seeking the deferral of filing of the statement of defence. The plaintiffs filed a notice of opposition. Counsel for the plaintiffs and the defendants agree that the application for deferral can be dealt with on the papers. The parties have exchanged memoranda.1

Factual background

[4] It is unnecessary to summarise the background to the various interactions between Mr Dotcom and the New Zealand and USA authorities in detail to determine the application. For present purposes I paraphrase the summary set out by Brewer J in Dotcom v The District Court at North Shore (the 1679 proceedings).2

[5] On 5 January 2012, the United States District Court for the Eastern District of Virginia issued an arrest warrant for Mr Dotcom based on five charges contained in an original indictment. On 20 January 2012, Mr Dotcom was at home when the Police arrived with search warrants and an arrest warrant. They searched Mr Dotcom’s home and seized, among other things, electronic devices such as computer hard drives and memory sticks. Mr Dotcom was arrested.

1 Plaintiffs’ memoranda of: 15 February, 28 February and 9 March 2018; Defendants’ memoranda of: 26 February and 5 April 2018.
2 Dotcom v The District Court at North Shore [2017] NZHC 3158.

[6] The search warrants…

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 Dotcom v Attorney-General

Details

AGLC: Dotcom v Attorney-General [2018] NZHC 653
Case: [2018] NZHC 653
Decision Date: 11 April 2018

CaseChat Overview and Summary

The High Court of New Zealand, Auckland Registry, dealt with an application to defer the filing of a statement of defence in a case involving Kim Dotcom and Megaupload Limited suing the Attorney-General (in various capacities) and the United States of America. The plaintiffs sought damages for amounts to be particularised prior to trial. The defendants' statements of defence were due by 26 February 2018. However, they filed a memorandum seeking an adjournment pending the outcome of the Court of Appeal in two appeals pursued by Mr Dotcom. The Court of Appeal decisions were significant because they would inform the status of the plaintiffs' claims in the current proceedings and the strike-out application. The court found that deferring the time for the defendants to file a statement of defence was in the interests of justice, given the impending Court of Appeal decisions and the strike-out application.

The legal issues the court had to decide included whether the defendants' reliance on the outcome of the Court of Appeal decisions justified deferring the time for filing a statement of defence and whether the strike-out application should be determined before a defence was required. The court considered the overall interests of justice and the objectives of the rules in making its decision. It found that the interests of justice and the objectives of the rules would best be met by deferring the time for the defendants to file a statement of defence to the current proceeding. The court also found that the strike-out application should be determined before a defence was required.

The court granted the application to defer the filing of a statement of defence. The defendants were not required to file a statement of defence pending further order of the Court. The Registrar was to refer this file to the Court to allocate a telephone conference for the purposes of advancing the proceeding and to allocate a hearing of the strike-out application after the delivery of the Court of Appeal decisions on the appeals from the decisions of the Court in Ortmann v United States of America and Dotcom v The District Court at North Shore. The defendants were to have costs in relation to the application and memoranda.

Orders