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 2003BETWEEN
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 advocateJudgment:
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…
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