Dotcom v Attorney-General

[2013] NZHC 697

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-001928 [2013] NZHC 697

UNDER  the Judicature Amendment Act 1972

IN THE MATTER OF       an application for judicial review and application for orders for interim relief pursuant to s 8

BETWEEN  KIM DOTCOM First Plaintiff

ANDFINN BATATO Second Plaintiff

ANDMATHIAS ORTMANN Third Plantiff

ANDBRAM VAN DER KOLK Fourth Plaintiff

ANDATTORNEY-GENERAL First Defendant

ANDTHE DISTRICT COURT AT NORTH SHORE

Second Defendant

Hearing:                   25 March 2013

Counsel:                  W Akel & R Woods for first plaintiff

GJSR Foley for second, third and fourth plaintiffs
K P McDonald QC, D J Boldt and FRJ Sinclair for First
Defendant
K P McDonald for NZ Police
D J Boldt for GCSB
DPH Jones QC amicus curiae

Judgment:                9 April 2013

JUDGMENT OF WINKELMANN J

DOTCOM v ATTORNEY-GENERAL [2013] NZHC 697 [9 April 2013]

This judgment was delivered by me on 9 April 2013 at 1.00 pm pursuant to

Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

[1]      During a conference to make necessary arrangements for the April hearing in this proceeding, two issues of dispute arose.

(i)       Quantification of Baigent damages

[2]      Both the first and third defendants seek an order that the plaintiffs quantify the claim for Baigent type damages they bring against both the New Zealand Police (the Police) and the Government Communications Security Bureau (GCSB).   The defendants do so in reliance on r 5.32 of the High Court Rules which provides “a statement of claim seeking the recovery of a sum of money must state the amount as precisely as possible”. As stated in the commentary to McGechan on Procedure, this

rule applies to all claims for damages,1 for the reasons set out by Holland J in Milne

v North Shore City Council:2

It is desirable that in all cases the plaintiffs do specify the damages that are being claimed because failure to do so deprives a defendant of the opportunity of paying into Court, substantially eliminates purposeful discussions as to settlement, and does not assist in the expeditious hearing of the matters in issue between the parties.

[3]      The plaintiffs resist the application.  They say that they do not have adequate facts to enable them to accurately quantify the claim, and they will not be in a position to do so until hearing.

[4]      My assessment is that the plaintiffs have now received adequate information for them to provide an estimate of the damages sought.   Given the procedure that must be followed in this case to accommodate the use of top secret material, and in particular the use of a Special Advocate, it is inevitable that the figures stipulated will only be estimates.  The plaintiffs may well obtain leave to amend those figures during the course of the hearing if they can point to significant new information that has emerged after the provision of the estimated figures.

(ii)      Challenge to privilege claims

[5]      The plaintiffs’ challenge the defendants’ claim to privilege in respect of two documents as follows:

(a)      Portions of minutes of a meeting at Crown Law dated 4 November

2011 that had previously been redacted from copies provided to the plaintiffs; and

(b)      A signed evidential statement by Detective Cox.

The minutes

[6]      The minutes have previously been supplied to the plaintiffs by the defendants with portions claimed to be subject to legal professional privilege redacted. Subsequently, and in error, the defendants supplied an unredacted copy.   The plaintiffs, having now seen the unredacted minutes, challenge the claim to legal professional privilege.  All counsel asked that I resolve the application by inspecting the document.

[7]      Privilege is now governed by ss 53-67 of the Evidence Act 2006 (the Act). Legal professional privilege is protected by s 54 of the Act, and acts to protect a person’s  right  to  consult  his  or her lawyer in  confidence.   This  right  has  been described as:3

... a fundamental condition on which the administration of justice as a whole rests … [It] is not for the sake of the applicant alone that the privilege must be upheld. It is in the wider interests of all those hereafter who might otherwise be deterred from telling the whole truth to their solicitors.

[8]      The privilege remains after the occasion for it has passed; that is, unless

waived, “once privileged, always privileged”.4

[9]      Having inspected the minute, I think there is much in the point made by

Ms McDonald, that the whole memorandum could legitimately have been the subject

of a claim for legal professional privilege, since it is a briefing of Crown Law by members of the Federal Bureau of Investigation and the Organised and Financial Crime Agency  of  New  Zealand  for  the  purpose  of  obtaining  legal  advice  and assistance.  Those parts which were previously redacted are communications taking place for the purpose of the giving and taking of legal advice.  I have reflected upon whether the waiver of privilege in respect of the balance of the document justifies an argument for waiver of privilege in respect of this remaining part.  I do not see that it does.  There is nothing unfair in allowing the balance of the document to remain as it stands. I also comment that the redacted portions seem to have no relevance to issues in the proceedings.

Evidentiary statement

[10]     The Police provided a copy of the evidential statement signed by Detective Cox to the plaintiffs, in error.  This statement related to the termination of the Police operation with the search of the Dotcom mansion.   It is dated July 2012.   It is in effect a signed brief of evidence, mistakenly served on the other side and within the context of civil proceedings.  Mr Akel argues that disclosure of it was ordered in my minute dated 31 July 2012.  In that minute I directed disclosure by the Crown of “all and any reports prepared by officers involved in the operations, (including STG officers)”.  That order cannot be read to direct the disclosure of documents subject to legitimate privilege claims.  It is rather directed to obtaining disclosure of documents such as job sheets and notebook entries.

[11]     Accordingly both challenges to the claims of privilege are dismissed.

Summary

[12]     To summarise:

(a)      The plaintiffs are to stipulate the quantum of damages for the Baigent claim against both the Police and GCSB, as precisely as they can at this time.

(b)       The challenges to the claim to privilege in respect of Detective Cox’s

statement,  and  the  redacted  portions  of  the  minutes  of  the  4

November 2011 meeting, are dismissed.