Introduction[1] Process for handling the disputed information in this Court[7] Mr Dotcom’s claim and GCSB’s defence[8] The general nature of the disputed information[11] The State’s claim to immunity from disclosure[12]
The nature of the claimed national security interest[12] No Prime Ministerial certificate as to national security risk[14] National security invoked under s 70 Evidence Act instead[19] The relationship between s 70 and s 27[21]
The decision required of a court under s 70[23] Jurisdiction to conduct a closed court process[35] The appointment of Mr Grieve as amicus and Special Advocate[44] Jurisdiction to appoint a Special Advocate under s 70[57] Did the Special Advocate process miscarry?[63] Evaluating the competing public interests[68]
The public interest in disclosure[69] The public interest in non-disclosure[72] The balancing exercise[73]
Decision[74]
Introduction
The Government Communications Security Bureau (“GCSB”) unlawfully intercepted Mr Dotcom’s private communications at the request of the New Zealand Police, who were conducting an operation in aid of United States authorities who have sought his extradition to face criminal charges in that jurisdiction. The intercepts began on or about 16 December 2011 and concluded some 10 days after Mr Dotcom was arrested on 20 January 2012. Later that year Mr Dotcom commenced judicial review proceedings challenging the lawfulness of his arrest, and the search warrants authorising the police actions on 20 January.
In the course of the 2012 judicial review proceedings, it became apparent that GCSB had acted unlawfully in intercepting Mr Dotcom’s communications. GCSB had failed to appreciate that Mr Dotcom’s resident-class visa precluded its surveillance.[1]
[1]Government Communications Security Bureau Act 2003 (repealed), s 14.
Thereafter Mr Dotcom commenced these civil proceedings in which he seeks damages for that breach of his privacy interests.[2] GCSB has admitted liability. At GCSB’s invitation, the High Court has entered judgment against it.[3] All that remains is to fix the damages payable.
[2]The damages proceedings were severed from the judicial review proceedings by consent. Mr Dotcom and Mona Dotcom are now the only plaintiffs, the others having settled. The others were Bram Van Der Kolk, Junelyn Van Der Kolk, Finn Batato, Mathias Ortmann, and Vestor Ltd.
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.
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AGLC
Dotcom v Attorney-General [2019] NZCA 412
Case
[2019] NZCA 412
Decision Date
CaseChat Overview and Summary
This case concerns an appeal by Kim Dotcom against an interlocutory judgment in his damages claim against the Government Communications Security Bureau (GCSB). The GCSB sought an order that certain intercepted communications not be disclosed in the proceeding on the grounds that it related to matters of State and the public interest in the information being disclosed was outweighed by the public interest in withholding it. The High Court granted the application and Mr Dotcom appealed. The Court of Appeal dismissed the appeal and held that the disputed information ought not be disclosed. The Court found that GCSB's claim that disclosure would harm national security and international relations was well-founded and that the public interest in non-disclosure outweighed the public interest in disclosure. The Court concluded that the balancing exercise favours non-disclosure and that the High Court was correct to order, under s 70 of the Evidence Act, that the disputed information not be disclosed in the proceeding.