Dotcom v Attorney-General - [2022] NZHC 2733

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2012-404-1928

[2022] NZHC 2733

BETWEEN
KIM DOTCOM

Plaintiff

AND

HIS MAJESTY'S ATTORNEY-GENERAL

First Defendant

THE DISTRICT COURT AT NORTH SHORE

Second Defendant

CIV 2017-404-1679

UNDER

The Judicial Review Procedure Act 2016

IN THE MATTER OF

An application for Judicial Review

BETWEEN

KIM DOTCOM

Applicant

AND

THE DEPUTY SOLICITOR-GENERAL (CROWN LEGAL RISK)

Respondent

On the papers

Counsel

R M Mansfield KC and S L Cogan for the applicant/plaintiff D J Boldt and B C Charmley for the respondent/defendants

Judgment:

20 October 2022

JUDGMENT OF CAMPBELL J

This judgment was delivered by me on 20 October 2022 at 04.00 pm pursuant to Rule 11.5
of the High Court Rules

Registrar/Deputy Registrar

DOTCOM v HIS MAJESTY'S ATTORNEY-GENERAL [2022] NZHC 2733 [20 October 2022]

[1] These two proceedings arise from the 2012 seizure of electronic devices from Kim Dotcom’s residence and one other property. In CIV-2012-404-1928 (the 2012 proceeding), Mr Dotcom and associates applied to judicially review the warrants issued for the seizure. In CIV-2017-404-1679 (the 2017 proceeding), Mr Dotcom applied to judicially review two decisions made by the Deputy Solicitor-General under the Mutual Assistance in Criminal Matters Act 1992 (the MACMA). The first decision, made in 2017, was to send clones of the seized electronic devices to United States authorities and the second, in 2022, was to send the original seized devices along with the clones.

[2]In a judgment dated 25 July 2022,1 Hinton J determined two applications:

(a)An application by the Attorney-General in the 2012 proceeding to release four former or serving police officers from their undertakings to not provide hard drive encryption codes to anyone, in particular any representative of the United States government (the undertakings application).

(b)Mr Dotcom’s substantive application in the 2017 proceeding to judicially review the decisions of the Deputy Solicitor-General under the MACMA.

[3] Hinton J granted the Attorney-General’s undertakings application and declined Mr Dotcom’s application for judicial review. Her Honour said this on costs:

[115] The defendants/respondent [the Attorney-General/the Deputy Solicitor- General] are entitled to costs. If agreement cannot be reached on quantum, they are to file a memorandum within 15 working days and Mr Dotcom is to reply within 10 further working days.

[4] Agreement on quantum was not reached. Memoranda were filed. Determination of costs was referred to me under r 14.9 of the High Court Rules 2016, as Hinton J was not available conveniently to make the determination.

1 Dotcom v Attorney-General [2022] NZHC 1708.

[5] After reading the costs memoranda, I issued a minute directing that further memoranda be filed.

[6] Having considered the further memoranda, there are four issues that I have to determine, identified below.

Has Hinton J already determined that Mr Dotcom is to pay costs?

[7] The costs memorandum initially filed on behalf of the Attorney-General and the Deputy Solicitor-General (who together I will refer to as the Crown parties

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 [2022] NZHC 2733
Case: [2022] NZHC 2733
Decision Date: 20 October 2022

CaseChat Overview and Summary

These proceedings stem from the 2012 seizure of electronic devices from Kim Dotcom's residence and another property, and subsequent judicial review applications. In the 2012 proceeding, Mr Dotcom sought to review the warrants issued for the seizure, while in the 2017 proceeding, he sought to review two decisions made by the Deputy Solicitor-General under the Mutual Assistance in Criminal Matters Act 1992. The Deputy Solicitor-General decided to send clones of the seized electronic devices to United States authorities in 2017, and the original seized devices along with the clones in 2022. In a previous judgment, Hinton J granted the Attorney-General's application to release former or serving police officers from their undertakings to not provide hard drive encryption codes to anyone, in particular any representative of the United States government, and declined Mr Dotcom's application for judicial review. The matter of costs was referred to Campbell J, who had to determine four issues: whether Hinton J had already determined that Mr Dotcom was to pay costs, what quantum of costs should be awarded, whether there should be an allowance for second counsel, and whether there should be a reduction in the costs otherwise awarded.

Campbell J first held that Hinton J had already determined that Mr Dotcom was to pay costs to the Crown parties, and that it was not open to Mr Dotcom to argue that there should be no order for costs. Mr Dotcom could, however, argue for a reduction in costs on the basis that the court should refuse to make an order for costs. Campbell J then addressed the quantum of costs that should otherwise be awarded, and found that band B was appropriate for item 30, and that it was appropriate to allow for second counsel. The parties had helpfully agreed that, if Campbell J reached the above decisions on the two matters in dispute, but subject to the arguments of Mr Dotcom for a reduction in costs, the award of costs should be $39,016.75, plus $595.65 in disbursements. Campbell J rejected Mr Dotcom's arguments for a reduction in costs, finding that the Attorney-General's undertakings application was not seeking an indulgence, and that the judicial review application did not concern any matter of genuine public interest.

Finally, Campbell J declined to make an order that Mr Dotcom pay any costs award within 21 days of this judgment, finding that costs awards are payable as soon as they are fixed. Campbell J ordered Mr Dotcom to pay to the Crown parties costs of $39,016.75 and disbursements of $595.65.

Orders