Dotcom v Minister of Justice
[2025] NZHC 759
•2 April 2025
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2024-485-583
[2025] NZHC 759
UNDER the Judicial Review Procedure Act 2016 IN THE MATTER
of an application for judicial review
BETWEEN
KIM DOTCOM
Applicant
AND
MINISTER OF JUSTICE
First Respondent
COMMISSIONER OF POLICE
Second Respondent
Hearing: 25 March 2025 Appearances:
R M Mansfield KC and S L Cogan for Applicant
J E Hodder KC and S L Leslie for First Respondent No appearance (excused) for Second Respondent
Judgment:
2 April 2025
JUDGMENT OF GRICE J
(Application for adjournment of judicial review hearing)
[1] This is an application for an adjournment of a judicial review application set down for a five-day hearing commencing 26 May 2025. The adjournment is sought due to a change in circumstances since the matter was set down in October 2024. On 6 November 2024, Mr Dotcom suffered a stroke which continues to significantly affect his health.
DOTCOM v MINISTER OF JUSTICE [2025] NZHC 759 [2 April 2025]
[2] The substantive judicial review application seeks a review of the decision of the Minister of Justice on 12 August 2024 (the Surrender Decision),1 that Mr Dotcom is to be surrendered to the United States to face trial on the 12 charges on which the Supreme Court had earlier found him eligible for surrender.2
Background
[3] In 2012 the United States requested the extradition of Kim Dotcom to face copyright infringement, money laundering, and wire fraud charges relating to Mr Dotcom’s Megaupload business. A substantial amount of litigation followed and on 4 November 2020 the Supreme Court of New Zealand held that Mr Dotcom is eligible for surrender on 12 of the 13 charges he faces in the United States.3
[4] Before making the Surrender Decision, the Minister, Hon Paul Goldsmith, considered a paper dated 2 July 2024 prepared by Ministry of Justice officials. The briefing process was overseen by Edrick Child, the Ministry’s Deputy Chief Legal Counsel. Mr Dotcom provided his 210-page initial legal submissions on 25 July 2022. They were supported by an electronic bundle of documents of many thousands of pages. Mr Dotcom later provided further information and supplementary submissions. Numerous further exchanges followed, including in relation to further information sought by the Minister from a United States legal expert, Crown Law, and the Commissioner of Police on specific issues. Mr Dotcom then made further submissions on those matters dated 9 May 2024.
[5] In a letter dated 12 August 2024, the Minister set out the reasons for the Surrender Decision and attached a surrender order signed by the Minister under the Extradition Act 1999.4 The judicial review application was filed on 9 September 2024. It was set down for hearing following a teleconference on an application for further
1 Extradition Act 1999, s 30.
2 Ortmann v United States of America [2020] NZSC 120, [2020] 1 NZLR 475. After the Supreme Court gave its eligibility decision in 2020, an outstanding judicial review required the matter to be remitted back to the Court of Appeal. That Court released its decision declining the judicial review on 12 July 2021. The Supreme Court then declined leave for a further appeal on 21 December 2021. The matter was then referred to the Minister for his decision on 21 March 2022.
3 Ortmann v United States of America, above n 2.
4 Extradition Act, ss 31 and 67.
discovery on 25 October 2024, and further steps ahead of the hearing were timetabled.5 On 25 February 2025 the present application was set down for hearing.6
Overview of application and opposition
[6] Mr Mansfield KC, for Mr Dotcom, advances the application for adjournment on the grounds that the stroke suffered on 6 November 2024 was a significant health event and full assessments of the effects of the stroke on Mr Dotcom’s physical and mental capacity are yet to be completed. The extent of the damage has not yet been fully assessed and the longer-term effects of the stroke are not known.
[7] Mr Mansfield noted that arrangements had been made for assessments to be carried out by two medical specialists for the purpose of providing reports. The specialists are Dr Toni Auchinvole who is treating Mr Dotcom and is a rehabilitation specialist, and Dr Christine Canty, a neuropsychologist who will assess the cognitive impairment caused by the stroke.
[8] Due to other commitments, Dr Canty is unable undertake the assessment of Mr Dotcom until 2–3 June 2025 and would provide the report sometime after that. Dr Auchinvole had been initially reluctant to provide a report as she is treating Mr Dotcom. However, she has now agreed to do so and is scheduled to undertake the assessment in April, with a report being available by mid-May 2025.7
[9] Without those reports, Mr Mansfield says the full extent of the incapacity suffered by Mr Dotcom will not be before the Court. When the reports are available Mr Dotcom intends to seek reconsideration of the Surrender Decision by the Minister. The course of these proceedings will therefore be dependent on the outcome of that reconsideration. An amendment to the statement of claim will deal with any further Ministerial decision. Therefore, the present timetable which has been set to bring the matter on for a hearing commencing 26 May 2025 is untenable.
5 Dotcom v Minister of Justice HC Wellington CIV-2024-485-583, 25 October 2024 (Substantive Hearing Timetabling Minute).
6 Dotcom v Minister of Justice HC Wellington CIV-2024-485-583, 25 February 2025 (Case Management Minute).
7 Initially the first respondent took the position that there was no affidavit evidence confirming the attempts made to obtain reports earlier than had been indicated by counsel in his memorandum, however on Mr Mansfield’s assurance that this was the case the point was taken no further.
[10] The first respondent opposes the application for adjournment and the second respondent abides by the Court’s decision.8 Mr Hodder KC, for the Ministry of Justice, submits that the proceeding is about the Minister’s August 2024 Surrender Decision, and there is no reason why it should not proceed. He notes that unless and until the Surrender Decision is set aside it remains effective and such a decision should not be suspended indefinitely.
Health issues
[11] Mr Dotcom’s health is a relevant factor in the Surrender Decision. The briefing paper referred to Mr Dotcom’s health issues at the time of the application. They were not inconsiderable, but the Minister at that stage did not consider Mr Dotcom’s health provided a reason to decline surrender. Mr Mansfield says the stroke has fundamentally shifted the factual position.
[12] Mr Dotcom filed two medical reports in support of the adjournment application. The first, dated 17 December 2024, which notes the occurrence of the stroke on 6 November 2024, is by Dr Stephen Child, who is treating Mr Dotcom. Dr Child is a general physician (with a respiratory interest). His report was based on his own assessment as well as reporting from three other medical specialists, including Dr Auchinvole, and discussions with Mr Dotcom and his wife. At that stage, Mr Dotcom had been moved from Dunedin Hospital to Wakari Hospital for ongoing care and rehabilitation, and required 24-hour hospital care. It is not necessary to go into the detail of that report, save to say the effects of the stroke were severe. In addition, Dr Child said that generally, 90 per cent of the improvement a patient will make post-stroke, occurs within the first three months of the stroke, with gradual improvements continuing out to two years, unless further complications occur.
[13] Dr Child summarised the position as being “a waiting game” for the next three months, when a reassessment would be made.
8 The second respondent abides the court decision on the adjournment application. The appearance of the second respondent was excused: Dotcom v Minister of Justice HC Wellington CIV-2024-485-583, 21 March 2025 (Endorsed Minute of Grice J).
[14] The next update in medical information, which recorded Mr Dotcom’s progress, was the Puāwai Rehabilitation Unit (PRU) Interdisciplinary Team Discharge and Referral Information document dated 18 February 2025 (the discharge form). The PRU is based at Wakari Hospital in Dunedin. The discharge form includes summaries of information collected from Mr Dotcom’s medical specialists as well as comments from Mr Dotcom and his wife.
[15] The discharge form records the summary by Dr Stevens of Mr Dotcom’s health conditions which is it not necessary to go into here.
[16] The discharge form goes on to make recommendations for follow up by Mr Dotcom with his general practitioner, as well as an outpatient referral “via Telehealth” for a follow-up with Dr Auchinvole in two to three months. The discharge form documents the improvements made by Mr Dotcom and sets out recommendations to assist his further progress. Again it is not necessary to go into detail here. However relevantly, Mr Dotcom did not consider his “everyday memory” was problematic, nor that he had any other significant cognitive difficulties. His wife reported that he now thought like “an average person cognitively”, whereas before he had been “more able than that”. In that regard, the psychometric testing confirmed that he was in the average range for healthy people of his age in most test scores. The discharge form records that Mr Dotcom has requested a further neuropsychological assessment in approximately six months. It was further noted that he would continue his occupational therapy and physiotherapy.
[17] In summary, while there is no doubt some way to go, Mr Dotcom has improved considerably over the crucial three-month period since the stroke.
Delay
[18] Mr Hodder pointed to the delay attendant in progressing the matter to this stage. Mr Mansfield responded that any delay before the matter went to the Minister (following the Supreme Court and subsequent Court of Appeal decisions) cannot be factored in as Mr Dotcom was merely exercising his rights. Secondly, the delay in the Minister’s decision making cannot be laid at the feet of Mr Dotcom, who diligently engaged in the process. Mr Mansfield summarised the situation as there being
occasions when there were delays on both sides and time was taken by each side to enable material to be gathered and responses to be made — all of those factors contributed to the two years taken for the Minister to issue the Surrender Decision.
[19] Mr Hodder took issue with that characterisation, and offered to put together the volume of correspondence covering the two year period; however, he did not press the point. It is not necessary for me to review what is no doubt a significant amount of correspondence and documentation that took place over that two year period, as it would likely need further explanation by the parties and, even then, may not take the matter any further. Nevertheless, while bearing in mind Mr Dotcom’s legal rights, that delay and the time taken in the earlier proceedings does shed light on how long it might take to complete the next stage of decision making.
[20] Counsel have cooperated in arranging their other commitments to secure the five-day hearing time in May 2025. Nevertheless, due to commitments which could not be moved, finding this time in the court schedule was not straightforward. It is not likely to be any easier going forward and based on the present court schedule the next available time for the hearing would not be until early 2027, even if matters progressed smoothly.
Procedural matters
[21] Mr Mansfield argues that Mr Dotcom should be permitted further time to obtain the updated specialist reports to put before the Minister in support of a reconsideration of the Surrender Decision. Following that, he proposes to amend the statement of claim and for the matter to proceed to a hearing. Presumably, that is predicated on the outcome of the further engagement with the Minister not resulting in a material change to the decision presently under review.
[22] Mr Mansfield suggests that if the present judicial review was unsuccessful then an appeal would inevitably follow. That would likely not be heard until the outcome of the reconsideration by the Minister had been received. A judicial review may follow that reconsideration and the appeal from the first judicial review decision would be delayed pending the decision on the second judicial review. Therefore, he says it
would be more efficient to adjourn the present proceeding so any further developments can be the subject of the same proceeding.
[23] In response, Mr Hodder says the judicial review filed relates to the August 2024 Surrender Decision and should be heard as scheduled. The relevant evidence largely comprises matters up to and including the decision, not new material. In addition, the issues contested have been consistent throughout. The numerous heads of claim pleaded largely mirror the list of issues put before the Minister, upon which extensive submissions were made on Mr Dotcom’s behalf.
[24] Mr Hodder emphasises that the issues in the judicial review are about process and law. Mr Dotcom is not required to give evidence but can observe remotely. There is no injustice with the trial proceeding.
Analysis
[25] The adjournment application falls for consideration under r 10.2 of the High Court Rules 2016. That rule provides that the court may adjourn a trial on any terms it considers just, provided it serves the interests of justice. The authors of McGechan on Procedure comment that this rule grants a very wide discretion to the judge.9
[26] It is a well-established principle that judicial review proceedings are intended to be “simple, untechnical and prompt”.10 The process is intended to be a straightforward way of challenging the legality of decisions made by public bodies. In the case of extradition, the need for expedition is pronounced.11 At the same time, as Mr Mansfield emphasised, Mr Dotcom’s rights, including to natural justice and a fair hearing, are important considerations.
9 Jessica Gorman and others McGechan on Procedure (online ed, Thomson Reuters) at [HR10.2.03].
10 Attorney-General v Dotcom [2013] NZCA 43, [2013] 2 NZLR 213 at [39], citing Minister of Energy v Petrocorp Exploration Ltd [1989] 1 NZLR 348 (CA) at 353; Kim v Minister of Justice [2024] NZHC 3662 at [38].
11 Minister of Justice v Kim [2021] NZSC 57, [2021] 1 NZLR 338 at [469] and [482].
[27] While not diminishing the detrimental effects of the stroke on Mr Dotcom, in my view his right to a fair hearing or to natural justice will not be unduly compromised by hearing the judicial review of the Surrender Decision in May 2025. The decision materials will be before the Court, Mr Dotcom has provided in depth submissions to the Minister, and his counsel, Mr Mansfield, is very familiar with the relevant issues. Mr Mansfield noted that he has acted in relation to the extradition issues for Mr Dotcom for the best part of a decade. The material relevant to the judicial review is in existence. He will not be impeded unduly from presenting his case at the judicial review hearing. Mr Dotcom can watch the proceedings remotely.
[28] The Surrender Decision, which is presently suspended, is now over seven months old and the judicial review will not be heard for a further (almost) two months on the present schedule. Whatever the reasons, these matters now date back 12 years. There is a strong public interest in the expeditious disposition of proceedings relating to extradition. As the Supreme Court noted:12
[469] … Extradition has become even more important in recent years in light of the growth in international crime. States now regard it as part of their role as good global citizens to ensure international cooperation in the detection and punishment of crime. It is important to remember that extradition proceedings are to assist criminal proceedings in another state. They are not proceedings to determine criminal charges. This means that extradition proceedings should proceed with as little delay as is possible while ensuring rights are protected. …
[29] I bear in mind that, unlike the situation with Mr Dotcom, the Supreme Court’s comments were made in relation to a defendant alleged to have committed a violent crime in the requesting jurisdiction from which he had fled. Nevertheless, the Court’s further comments are relevant here. It noted that other rights needed to be considered, including the rights of “individual victims” to see that those accused of serious crimes do not escape being tried.13 While the criminal allegations made by the United States Government against Mr Dotcom may be regarded as “victimless” by some, they nevertheless are serious criminal allegations and there is a public interest in their being tried.
12 Minister of Justice v Kim, above n 11 (footnotes omitted).
13 At [470].
[30] On balance, I conclude that the interests of justice are best served by the judicial review hearing proceeding on schedule. I conclude there are strong public interest reasons for the judicial review to be heard as scheduled, rather than delayed further based on speculation as to what might happen in the future and the possibility a new review of a decision which is yet to be made. Mr Dotcom’s fair trial and natural justice rights, insofar as they relate to the judicial review before the Court, are not unacceptably compromised.
[31]The application for adjournment is declined.
[32] Costs would ordinarily follow the event on this application. If counsel require a determination on costs, they should file submissions as follows: the applicant within three days; the respondents within a further three days; and any reply within a further two days.
Timetable
[33] Mr Dotcom’s discovery application was declined on 13 December 2024.14 An application for leave to appeal that decision was declined on 25 March 2025.15 The timetable set out in my minute dated 25 February 2025 is confirmed as follows:16
(a)The applicant’s evidence is to be filed and served by 7 April 2025.
(b)The respondents’ evidence is to be filed and served by 17 April 2025.
(c)The applicants are to file and serve submissions, a bundle of relevant documents, pleadings, and authorities by 28 April 2025.
(d)The respondents are to file and serve submissions and any additional authorities by 19 May 2025.
(e)The judicial review application hearing is set down for five days from
14 Dotcom v Minister of Justice [2024] NZHC 3834.
15 Dotcom v Minister of Justice [2025] NZHC 637.
16 Case Management Minute, above n 6, at [7].
26 May 2025.
[34] The applicant should also file and serve a joint chronology at the time the bundle is filed.
Redaction of parts of judgment
[35] This judgment contains some medical information. In view of Mr Mansfield’s earlier indications, I anticipate the applicant will seek redaction of that information. The judgment will be distributed to counsel and not for wider publication for a period of five days to enable counsel to make submissions on redactions.
Grice J
Solicitors:
Holland Beckett Law, Tauranga for Applicant
Luke Cunningham & Clere, Wellington for First Respondent Crown Law, Wellington for Second Respondent
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