Dotcom v Deputy Solicitor-General

[2022] NZHC 2866

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-001679

[2022] NZHC 2866

BETWEEN

KIM DOTCOM

Applicant

AND

DEPUTY SOLICITOR-GENERAL (CROWN LEGAL RISK)

Respondent

CIV-2012-404-001928

BETWEEN

KIM DOTCOM
Plaintiff

AND

HER MAJESTY’S ATTORNEY GENERAL

First Defendant

AND

THE DISTRICT COURT AT NORTH SHORE

Second Defendant

Hearing:	(On the papers)
Counsel:	Ron Mansfield KC and Simon Colgan for the Applicant/Plaintiff David Boldt and Briar Charmley for the Respondent/Defendants
Judgment:	3 November 2022

JUDGMENT OF MOORE J

[Application for leave to appeal retrospectively]

This judgment was delivered by me on 3 November 2022 at 3:00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar Date:

DOTCOM v DEPUTY SOLICITOR-GENERAL (CROWN LEGAL RISK) [2022] NZHC 2866 [3 November 2022]

Background

[1]    Kim Dotcom, the Attorney-General and the Deputy Solicitor-General are involved  in  litigation  precipitated  by  the  seizure  of  electronic  devices  from   Mr Dotcom’s residence and another address in 2012.

[2]On 25 July 2022, Hinton J delivered judgment:1

(a)granting the Attorney-General’s application for orders releasing four former or serving Police officers from undertakings as to confidentiality that they had given to Mr Dotcom pursuant to orders of this Court; and

(b)dismissing Mr Dotcom’s application for judicial review of the Deputy Solicitor-General’s decisions under the Mutual Assistance in Criminal Matters Act 1992 to send clones and originals of particular seized electronic devices to United States of America authorities.

[3]    On 22 August 2022, Mr Dotcom filed a notice of appeal against both decisions in the Court of Appeal. In response, the Deputy Solicitor-General filed a protest to jurisdiction. His opposition was that Mr Dotcom’s appeal was against an interlocutory decision and thus required leave to appeal.

[4]    On 21 September 2022, Goddard J issued a Minute expressing his preliminary view that there was a serious argument that the application was for relief ancillary to that claimed in a pleading and therefore interlocutory.2 If leave was required, the Judge considered it “difficult to identify a basis on which leave could be refused”.3 A refusal to grant leave would mean there was no right of appeal whatsoever against this Court’s decision concerning the release of the undertakings.4 The Judge encouraged the parties to confer and consider whether leave could be sought retrospectively from this Court by consent.5

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

2      Dotcom v Attorney-General CA426/2022, 21 September 2022 (Minute of Goddard J) at [5].

3 At [6].

4 At [6].

5 At [7].

[5]    On 21 October 2022, the parties filed a joint memorandum of counsel in this Court. Counsel advise that they have conferred and agree with Goddard J’s suggested approach. The parties thus seek that Mr Dotcom’s application for leave to appeal Hinton J’s decision be granted retrospectively and by consent.

Should the application for leave to appeal be granted?

[6]    The ultimate question is whether the interests of justice are served by granting leave.6

[7]    I am satisfied that is the case. As noted by Goddard J, the proceeding in which the undertakings were given has concluded, save for the question whether the undertakings should remain in force or be discharged. There will be no final judgment delivered in that proceeding from which an appeal could be brought as of right. The effect of a refusal to grant leave at this stage would be that there is no right of appeal against the decision.

[8]    I therefore consider that the interests of justice require a grant of leave to appeal.

Result

[9]Leave to appeal is granted.

Moore J

Solicitors:

Mr Mansfield KC, Auckland Mr Colgan, Auckland

Mr Boldt, Wellington
Crown Law Office, Wellington

6      Greendrake v District Court of New Zealand [2020] NZCA 122 at [6(e)].