Dotcom v Attorney-General - [2019] NZHC 740

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2018-485-286

[2019] NZHC 740

BETWEEN
KIM DOTCOM

Applicant

AND

THE ATTORNEY-GENERAL

Respondent

Hearing: 20 March 2019

Counsel:

R M Mansfield and S L Cogan for Applicant V Casey QC for Respondent

Judgment:

8 April 2019

JUDGMENT OF CHURCHMAN J

[1] The applicant has applied for leave to appeal to the Court of Appeal the decision of this Court dated 1 October 2018.1

[2] Leave is required because this is a second appeal under s 124 of the Human Rights Act 1993. The Court may grant leave if the appeal involves a question of law which by reason of its general public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.

[3] The original questions in respect of which leave was sought covered some nine pages with many different questions and sub-questions. Many of the proposed questions were not questions of law at all.

[4] On the day prior to the hearing of the leave application, the applicant filed a revised list of different questions which reduced the number of questions to five set

1 The Attorney-General v Dotcom [2018] NZHC 2564.

DOTCOM v THE ATTORNEY-GENERAL [2019] NZHC 740 [8 April 2019]

out over one page. Although the document stated that the applicant for leave did not resile from the original questions, during the course of the hearing, it became clear that the five questions posed in the 19 March 2019 memorandum effectively completely replaced the multitude of questions in the original application for leave. This sudden change of tack rendered irrelevant most of the written submissions filed by both counsel ahead of the hearing as they addressed questions no longer being proposed.

[5] During the course of oral argument, Mr Mansfield, counsel for the applicant, indicated that he was prepared to abandon the leave application in respect of Question 4.

[6] During his submissions in reply, when responding to criticism of the proposed Question 5, Mr Mansfield made the enigmatic comment that he accepted that the issue of remedies was obiter and could be resolved on appeal if the Court of Appeal found favour with his argument in relation to the initial requests. It is not clear whether he was abandoning Question 5, and neither is it clear exactly how he thought the Court of Appeal would be able to deal with it if the issue did not meet the threshold of being a question of law of general or public importance.

[7] Accordingly, I will treat Question 5 as being one which the applicant still wished to advance. The remaining questions were:

Question 1:
Can a request for personal information under Information Privacy Principle 6, with an accompanying request for urgency under s 37, be refused as one
indivisible request under the Privacy Act 1993 (Act) on the grounds that urgency was sought?

Question 2:
Can a request for personal…

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 [2019] NZHC 740
Case: [2019] NZHC 740
Decision Date: 8 April 2019

CaseChat Overview and Summary

In the High Court of New Zealand, Kim Dotcom, the applicant, applied for leave to appeal the decision made by the Court on 1 October 2018. The court was required to decide whether the appeal involved a question of law of general public importance or any other reason that ought to be submitted to the Court of Appeal for decision. The court examined whether the questions proposed by the applicant met the criteria set out in s 124 for the grant of leave. The court considered whether the proposed questions gave rise to issues of general or public importance, outside the particular circumstances of the applicant. The court also considered the public interest in the finality of litigation and preventing delay and further expense, and the use of the scarce resource of the court. The court held that while the questions proposed by the applicant were either predicated on a factual basis that did not exist or did not meet the criteria in s 124 for the grant of leave, it was possible to redraft Question 2, and, notwithstanding the admonition of the Court of Appeal in Cook v Housing New Zealand that a high threshold had to be met by an applicant to justify a second appeal, it was appropriate to grant leave. Accordingly, leave was granted on that basis.

Orders