Dotcom v Attorney-General

[2015] NZHC 246

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2013-404-2168 [2015] NZHC 246

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

AND

MONA DOTCOM Second Plaintiff

AND

BRAM VAN DER KOLK Third Plaintiff

AND

JUNELYN VAN DER KOLK Fourth Plaintiff

AND

MATHIAS ORTMANN Fifth Plaintiff

AND

FINN BATATO Sixth Plaintiff

AND

ATTORNEY-GENERAL in respect of the
New Zealand Police
First Defendant

AND

ATTORNEY-GENERAL in respect of the Government Communications Security Bureau

Second Defendant

Hearing:	On the papers
Judgment:	23 February 2015

COSTS JUDGMENT OF WINKELMANN J

DOTCOM v ATTORNEY-GENERAL [2015] NZHC 246 [23 February 2015]

This judgment was delivered by me on 23 February 2015 at 4.00 pm pursuant to

Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

[1]      By judgment dated 16 June 2014, I ordered non-party discovery against the Department of Prime Minister and Cabinet (DPMC) and Mr Roy Ferguson as follows:1

All documents held by DPMC (including both documentary material and electronically held material) relating to GCSB’s surveillance of the plaintiffs, the legality of that surveillance, and GCSB’s knowledge of the illegality of that surveillance.

[2]      The non-parties provided discovery in compliance with the order. There were no documents falling within this category.  They now seek orders of costs against the plaintiffs in respect of the application (2B scale costs plus disbursements totalling

$4,786.50), the actual costs of complying with the order ($3,211.96) and actual costs in respect of this costs application (around $2,500.00).

[3]      The plaintiffs resist any order for costs on the provision of the non-party discovery.  They say that the non-parties should have responded at an earlier point in time that they had no documents which fell within the terms of the request.  That would have avoided the cost of the application for all parties.

[4]      It is clear that a costs award cannot be resisted on this basis as the original request made was far wider than the order for discovery.   It was only after the plaintiffs narrowed the scope of documents they were seeking at the hearing that the order in its present form was made and that the DPMC and Mr Ferguson could respond confirming that there were no such documents.

[5]      The  plaintiffs  also  submitted  that  costs  should  be  reserved  pending  the outcome of the substantive proceeding.  I do not consider that there is any principle that requires costs in connection with non-party discovery to be reserved until final disposition.

[6]      The plaintiffs resist an award of costs on the application on the additional grounds that the non-parties were represented by the same counsel as the GCSB, the submissions in opposition to the application for non-party disclosure were authored

by counsel for the GCSB and it was counsel for the GCSB who appeared at the

1      Dotcom v Attorney-General [2014] NZHC 1343 at [42].

hearing and presented arguments in opposition.   However, counsel for the non- parties confirms that Crown Law separately invoiced the non-parties for the work, and that those invoices exceed the costs now sought.  It is clear that defending the application would have entailed additional costs to those incurred in representing the GCSB.

[7]      As non-parties, the DPMC and Mr Ferguson should be entitled to the actual costs of compliance with the order for non-party discovery.

[8]      In these circumstances I am satisfied that it is appropriate to exercise the jurisdiction under r 8.22 to order the costs sought on both the application for non- party discovery and the provision of discovery.

[9]      As  to  the  quantum  of  the  costs  of  complying  with  the  application,  the plaintiffs say that there is no information as to how the claimed costs are made up. In submissions in reply invoices are provided in support of the amount.   That information establishes that actual costs of complying with the order were in the vicinity of $3,211.96 and accordingly I am satisfied that is an appropriate amount to award.

[10]     That leaves the issue of costs on the costs application.  There is discretion to award costs on a costs application.   The non-parties seek actual costs.   The non- parties acted reasonably in connection with all aspects of the application for costs.  It is therefore appropriate to award indemnity costs in connection with the costs application.2   I refer this aspect of the issue of costs to the Registrar.  He is to fix the indemnity costs award on presentation of invoices to him establishing costs incurred in bringing this application for costs.

Orders

[11]     The  plaintiffs  are  jointly  and  severally  liable  to  the  non-parties  for  the following costs:3

2      High Court Rules, r 14.6(4)(d).

3      Rule 14.14.

(a)       2B scale costs plus disbursements on the application of $4,786.50;

(b)      the actual costs of complying with the discovery order of $3,211.96;

and

(c)       indemnity costs in connection with this costs application to be fixed by the Registrar.