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Dotcom v Attorney-General

Dotcom v Attorney-General

Case [2017] NZHC 1621 14 July 2017

Discovery & Disclosure

Public Interest Immunity

National Security Law

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-002168 [2017] NZHC 1621

IN THE MATTER OF
the New Zealand Bill of Rights Act 1990

and the Government Communications
Security Bureau Act 2003

BETWEEN

KIM DOTCOM First Plaintiff

MONA DOTCOM Second Plaintiff

BRAM VAN DER KOLK Third Plaintiff (discontinued)

JUNELYN VAN DER KOLK Fourth Plaintiff (discontinued) contʼd: …/2

Hearing: 3, 4, and 5 April 2017

Appearances:

R M Mansfield and S L Cogan for First Plaintiff
J R Hosking for Second Plaintiff
K P McDonald QC and A N Isac for First Defendant
D J Boldt for Second Defendant
S B W Grieve QC special advocate

Judgment:

14 July 2017

JUDGMENT OF GILBERT J

This judgment is delivered by me on 14 July 2017 at 11.00 am pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

Counsel/Solicitors:
R M Mansfield, Barrister, Auckland Anderson Creagh Lai Limited, Auckland - S L Cogan
J R Hosking, Barrister, Auckland
K P McDonald QC, Auckland, A N Isac, Barrister, Auckland
D J Boldt, Barrister, Wellington S B W Grieve QC, Auckland Crown Law, Wellington

DOTCOM & ORS v ATTORNEY-GENERAL & ANOR [2017] NZHC 1621 [14 July 2017]

…/2

FINN BATATO
Sixth Plaintiff (discontinued)
VESTOR LIMITED Seventh Plaintiff

ANDHER MAJESTY’S ATTORNEY- GENERAL, on behalf of the New Zealand Police
First Defendant
HER MAJESTY’S ATTORNEY- GENERAL, on behalf of the Government Communications Security Bureau
Second Defendant
INDEX

Introduction [1] – [11]

Are the Dotcoms estopped by the Court of Appeal’s judgment from seeking discovery of the raw communications in this proceeding?

The judicial review proceeding  [12] – [15]
The Court of Appeal judgment  [16]
The present proceeding  [17]
Legal principles  [18] – [21] Submissions  [22] – [24] Analysis  [25] – [34]

If not, are the raw communications discoverable? [35] – [36]

Should an order be made pursuant to s 70 of the Act?

Legal principles [37] – [42] Submissions [43] – [44] Analysis [45] – [64]

Result [65] – [67]

Introduction

[1] The Government Communications Security Bureau (GCSB) has admitted unlawfully intercepting private communications of Kim and Mona Dotcom (the Dotcoms) and Bram van der Kolk during the period from 16 December 2011 to
22 March 2012. This occurred in the context of a police operation established to assist the United States in connection with its request for the extradition of Mr Dotcom, Mr van der Kolk and others to face trial in the United States on various charges including conspiracy to commit copyright infringement, money laundering, racketeering and wire fraud.

[2] In this proceeding, the Dotcoms seek an award of damages against GCSB for this unlawful interception of their communications.1 They pursue other claims as well but these are not relevant to the present application. Liability having been admitted, the only issue is what relief should be given.

[3] The defendants have completed discovery but they have not discovered the raw communications, contending that these are not relevant to the question of relief. They say that the non-discoverability of the…

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 [2017] NZHC 1621
Case: [2017] NZHC 1621
Decision Date: 14 July 2017

CaseChat Overview and Summary

The case of Dotcom v Attorney-General involves Kim and Mona Dotcom who seek damages for the unlawful interception of their private communications by the Government Communications Security Bureau (GCSB). The defendants argue that the raw communications are not relevant to the quantum of damages that should be awarded, and that their non-disclosure should be ordered under s 70 of the Evidence Act 2006 on national security grounds. The central issues are whether the Dotcoms are estopped by the Court of Appeal’s judgment from seeking discovery of the raw communications, whether the raw communications are discoverable, and whether an order should be made pursuant to s 70 of the Act. The Court of Appeal had determined that the raw communications were not relevant or discoverable, and this judgment is determinative of the issue as between Mr Dotcom and the defendants. Consequently, Mr Dotcom cannot re-litigate this issue. The Court concludes that the raw communications are not discoverable in this proceeding. The Court is satisfied that the communications and information sought to be withheld do relate to matters of state in terms of s 70 of the Act. Having considered all the evidence, the Court is satisfied that the public interest in withholding disclosure of these communications must outweigh the public interest in disclosure. The Court grants the defendants’ application in the terms sought.

Orders