Dotcom v Attorney-General - [2012] NZHC 3268

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-001928 [2012] NZHC 3268

UNDER the Judicature Act 1972

IN THE MATTER OF an application for judicial review

BETWEEN KIM DOTCOM First Plaintiff

ANDFINN BATATO Second Plaintiff

ANDMATHIAS ORTMANN Third Plaintiff

ANDBRAM VAN DER KOLK Fourth Plaintiff

ANDATTORNEY-GENERAL First Defendant

ANDTHE DISTRICT COURT AT NORTH SHORE
Second Defendant

Hearing: 14 November 2012

Counsel: P J Davison QC, W Akel and R Woods for First Plaintiff
GJ Foley for Second, Third and Fourth Plaintiffs J C Pike and FRJ Sinclair for First Defendant DPH Jones QC, Amicus
SBW Grieve QC, Special Advocate

Judgment: 5 December 2012

JUDGMENT OF WINKELMANN J

This judgment was delivered by me on 5 December 2012 at 2.15 pm pursuant to Rule 11.5 of the High
Court Rules.
Registrar/ Deputy Registrar

DOTCOM V ATTORNEY-GENERAL HC AK CIV-2012-404-001928 [5 December 2012]

[1] The plaintiffs apply to join an additional defendant, amend the statement of claim, and for additional discovery. The background to these applications is as follows. I have previously determined that aspects of a Police search and seizure in January 2012, in connection with the plaintiffs, were illegal. Following on from that finding, there was a hearing in August 2012 to consider the plaintiffs’ allegations that the Police search and seizure of the Dotcom mansion was unreasonable because it was illegal, and because the force used was excessive in all the circumstances. I refer to this hearing as the remedies hearing.

[2] Following the conclusion of the remedies hearing, material came to light which showed that the Government Communications Security Bureau (GCSB) had been intercepting the communications of the first and fourth plaintiffs, Mr Dotcom and Mr van der Kolk. The first defendant concedes that those interceptions were unlawful.

[3] The revelation that the Police had access to intercepted communications gathered by the GCSB created difficulty in the conduct of this litigation. This is material which is likely relevant, at least in part, to an assessment of the circumstances as the Police understood them to be, when they planned the search of the Dotcom property. If so, it is material which should have been available for the remedies hearing. There is further difficulty, however, because the GCSB claims that disclosure of those communications will prejudice New Zealand’s national security interests as it will tend to reveal intelligence gathering and sharing methods. The first defendant also challenges the relevance of the documents, and says, even if they are relevant, I should direct, pursuant to s 70 of the Evidence Act 2006, that they should not be disclosed in the proceeding.

[4] Mr Grieve QC has been appointed by me as amicus to advocate for the plaintiffs’ point of view in relation to these documents, on the issues of relevance, and the s 70 issue.

[5] The late revelation of the involvement of the GCSB has therefore slowed the progress of the proceeding. A further development is that the plaintiffs now seek leave to amend the statement of claim to…

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 [2012] NZHC 3268
Case: [2012] NZHC 3268
Decision Date: 5 December 2012

CaseChat Overview and Summary

The plaintiffs, Kim Dotcom and others, applied for leave to join the Government Communications Security Bureau (GCSB) as a defendant and to amend the statement of claim, along with seeking additional discovery. The background to these applications was the revelation that the GCSB had been intercepting the plaintiffs' communications, which created difficulty in the conduct of this litigation. The first defendant conceded that those interceptions were unlawful. The plaintiffs sought declarations about the legality of the GCSB's actions and to seek damages against the Police and the GCSB. The Attorney-General opposed joinder of the GCSB as a further defendant.

The Court found that there was no procedural bar to including claims for damages in judicial review proceedings. The Court concluded that the most convenient and expeditious way of enabling the Court to determine all matters in dispute was to join the GCSB in the proceedings and give leave to amend the claim. The Court also granted the plaintiffs' applications in relation to redactions to the blue folder, discovery in relation to the GCSB, and affidavits from Detective Inspectors Jones and Wormald. The Court declined to make orders in relation to the request for an affidavit from Detective Superintendent Pannett and ongoing surveillance or interceptions.

The Court ordered that the GCSB be joined as a defendant to these proceedings, leave be granted to the plaintiffs to amend their claim, the GCSB provide discovery of documents, Detective Superintendent Pannett provide an affidavit, and Detective Inspectors Jones and Wormald file affidavits. A further conference in this proceeding will be held in the second week of December 2012 to resolve any outstanding matters and address any necessary timetabling.

Orders