IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2015-404-856 [2015] NZHC 1197
UNDER the Judicature Amendment Act 1972 IN THE MATTER
of an application for Judicial Review
BETWEEN
KIM DOTCOM First Plaintiff
BRAM VAN DER KOLK Second Plaintiff
AND
THE DEPUTY SOLICITOR-GENERAL First Defendant
THE COMMISSIONER OF POLICE Second Defendant
Hearing: 8 May 2015 Appearances:
R Mansfield and S L Cogan for the First Plantiff
G M Illingworth QC and A K Hyde for the Second Plaintiff
D J Boldt and B Fenton for the DefendantsJudgment:
3 June 2015
JUDGMENT OF ELLIS J
This judgment was delivered by me on Wednesday 3 June 2015 at 11.00 am pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date:………………………….
Counsel/Solicitors:
R Mansfield, Barrister, Auckland
S L Cogan, Anderson Creagh Lai Ltd, AucklandG M Illingworth QC, Barrister, Auckland
A K Hyde, Keegan Alexander, Auckland
PJK Spring, Keegan Alexander, AucklandD J Boldt, Crown Law, Wellington
B Fenton, Crown Law, Wellington
DOTCOM v THE DEPUTY SOLICITOR-GENERAL [2015] NZHC 1197 [3 June 2015]
[1] As is tolerably well known, the United States government is presently seeking to extradite Kim Dotcom and Bram Van der Kolk, in order that they can be tried on a number of criminal charges in that country. The charges relate to their involvement in the allegedly unlawful activities of a number of companies, which are commonly and collectively referred to as the “Megaupload” group.
[2] Following the laying of charges against Messrs Dotcom and Van der Kolk in the United States, the United States government obtained restraining orders there over residential properties and personal assets owned by them in New Zealand. Pursuant to the Mutual Assistance in Criminal Matters Act 1992 (the MACMA) and the Criminal Proceeds (Recovery) Act 2009 (the CPRA), those restraining orders were registered in New Zealand in 2012, which meant they could be enforced here.1
[3] More recently, the United States has, in America, applied for, and been granted, civil forfeiture orders over those same assets (the US Forfeiture Order). Following a further request for mutual assistance the New Zealand Commissioner of Police (the Commissioner) has taken steps to have those orders, too, registered in this country. The effect of registration here would be that the assets would, within a relatively short space of time, vest absolutely in the Crown.2
[4] The Commissioner is required to obtain the authorisation of the Attorney- General (or his delegate, in this case, the Deputy Solicitor-General (Criminal)) before applying to the Court for registration of the forfeiture orders. That authorisation was obtained on 9 April 2015 and the application for registration was then filed.
[5] By these present proceedings, Messrs Dotcom and Van der Kolk (the plaintiffs) seek judicial review of the Deputy Solicitor-General (Criminal)’s authorisation decision. They also seek interim orders to prevent the Commissioner from taking further steps to progress the registration application, pending resolution of the substantive review. In turn, the Commissioner has applied to strike out the
judicial review proceedings.
1 Criminal…
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- AGLC
- Dotcom v Deputy Solicitor-General [2015] NZHC 1197
- Case
- [2015] NZHC 1197
- Decision Date
CaseChat Overview and Summary
The court found that the Deputy Solicitor-General's decision was not clearly untenable, and the application for judicial review should not be struck out. The court found that the fugitive disentitlement doctrine, which had been applied in the United States to grant the forfeiture orders, was not recognised in New Zealand and that the doctrine's application in this case was a matter that should have been taken into account by the Deputy Solicitor-General when making his decision. The court also found that there was a potential for bias on the part of the Deputy Solicitor-General due to his multiple roles within Crown Law, which could give rise to a reasonable apprehension of bias.
The court granted interim orders to prevent the registration process from proceeding, pending the final determination of the judicial review application. The court found that the plaintiffs had a substantial position to preserve and that there would be very real consequences if the registration process were to proceed without interim relief. The court also found that the plaintiffs were entitled to their costs on both applications, on a 2B basis in the usual way.
Orders
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Decision
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