Dotcom v Attorney-General

[2013] NZHC 2336

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2013-404-2168 [2013] NZHC 2336

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:	9 September 2013

JUDGMENT OF WINKELMANN J

[application by NZ Herald for access to statement of claim and statement of

defence]

DOTCOM v ATTORNEY-GENERAL [2013] NZHC 2336 [9 September 2013]

This judgment was delivered by me on 9 September 2013 at 12 noon pursuant to

Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

[1]      In this proceeding the plaintiffs claim damages for the actions of the Police and GCSB in connection with search and surveillance.  The proceeding is in its interlocutory phases, with the parties are currently working their way through discovery.

[2]      Mr  Fisher  of  the  New  Zealand  Herald  (the  Herald)  seeks  access  to  the statement of claim and statement of defence for the purpose of reporting.  He states there is significant public interest in the subject matter of the proceeding.

[3]      The plaintiffs do not object to the release of these documents to the Herald. The defendants oppose the release.  They say that the High Court Rules create a presumption that pleadings and other documents will be publicly available during the hearing phase, but that presumption does not apply prior to trial.  The record is necessarily incomplete at the pre-hearing stage and the parties have not had the opportunity to refer to documents in open Court.

[4]      The defendants are correct that the presumption in favour of access contained in Rule 3.9 does not  apply.    Rather Rules 3.11 – 3.16  govern this application. Having taken into account the matters listed in Rule 3.16 relevant to the application, I am satisfied that the application should be granted.  Although the record is not yet complete, the defendants have filed a statement of defence and the plaintiffs a reply to that.  The pleadings that will be released to the Herald therefore are complete in as much as they record the plaintiffs’ allegations, the defendants’ response and the plaintiffs’ reply to that.   No unfairness therefore arises.   There are no particular confidentiality or privacy issues raised by the defendants in connection with those pleadings and nothing to suggest the release will prejudice the orderly and just resolution of this proceeding.  I add to this that the principle of open justice favours disclosure, and that these are proceedings in which there is very significant public interest.  The plaintiffs allege the Tribunal the actions of the Police and the GCSB were illegal and in breach of the New Zealand Bill of Rights Act 1990.

[5]      I therefore grant the Herald’s application for access to the statement of claim and statement of defence.  So that the Herald has a complete set of pleadings, access is also granted to the plaintiffs’ reply.