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Dotcom v Deputy Solicitor-General

Dotcom v Deputy Solicitor-General

Case [2015] NZHC 1197 3 June 2015

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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 Defendants

Judgment:

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, Auckland
G M Illingworth QC, Barrister, Auckland
A K Hyde, Keegan Alexander, Auckland
PJK Spring, Keegan Alexander, Auckland
D 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…

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 Deputy Solicitor-General

Details

AGLC: Dotcom v Deputy Solicitor-General [2015] NZHC 1197
Case: [2015] NZHC 1197
Decision Date: 3 June 2015

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Dotcom v Deputy Solicitor-General involved Kim Dotcom and Bram Van der Kolk, who sought judicial review of the Deputy Solicitor-General's decision to authorise the registration of US forfeiture orders in New Zealand. The plaintiffs argued that the Deputy Solicitor-General's decision was unlawful and that interim orders should be granted to prevent the registration process from proceeding. The defendants, represented by the Deputy Solicitor-General and the Commissioner of Police, sought to strike out the judicial review application. The central legal issues in the case were whether the Deputy Solicitor-General's decision was unlawful and whether interim orders should be granted to prevent the registration process from proceeding.

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