Dotcom v Twentieth Century Fox Film Corporation

[2018] NZHC 299

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA
TĀMAKI MAKAURAU ROHE

CIV-2017-404-1837 [2018] NZHC 299

UNDER

Part 19 of the High Court Rules 2016

BETWEEN

KIM DOTCOM

Applicant

AND

TWENTIETH CENTURY FOX FILM CORPORATION; DISNEY

ENTERPRISES, INC; PARAMOUNT PICTURES CORPORATION; UNIVERSAL STUDIOS PRODUCTIONS LLP;

COLUMBIA PICTURES INDUSTRIES INC; WARNER BROS PICTURES INTERNATIONAL

First Respondents

YIFTACH SWERY

Second Respondent

Hearing:

On the papers

Counsel:

SL Cogan and GA Barkle for applicant

MC Sumpter and H Wham for first respondents

Judgment:

1 March 2018

JUDGMENT OF FITZGERALD J

[As to costs]

This judgment was delivered by me on [           ] at [        am/pm], pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:Anderson Creagh Lai Ltd, Auckland (A Glenie) Chapman Tripp, Auckland

Dotcom v Twentieth Century Fox Film Corporation; [2018] NZHC 299 [1 March 2018]

Introduction

[1]                  In August 2017, Mr Dotcom applied for access to a court file concerning a matter between the first respondents, Twentieth Century Fox Film Corp (and others) and the second respondent, Mr Swery.1 Mr Dotcom’s application was declined for reasons given in my judgment of 20 December 2017.2 I encouraged the parties to seek agreement on costs.3 They have been unable to do so.

[2]                  The respondents seek costs on a 2B basis and certification for second counsel. Mr Dotcom argues that the application for access to the court file engaged rights under the New Zealand Bill of Rights Act 1990 (“NZBORA”) and thus costs should be reduced. Additionally, he argues no allowance for second counsel is warranted.

Discussion

Reduction in costs due to rights issues

[3]                  Counsel for Mr Dotcom acknowledges the claim to access the court file was not a claim under NZBORA. Nonetheless, it is submitted NZBORA issues were raised, including the right to seek and impart information4 and the right to natural justice.5

[4]                  Under the High Court Rules 2016, costs may be reduced if “the proceeding concerned a matter of public interest, and the party opposing costs acted reasonably in the conduct of the proceeding”6 or “some other reason exists which justifies the court refusing costs or reducing costs despite the principle that the determination of costs should be predictable and expeditious”.7

[5]                  In cases involving the application of NZBORA, it may be inappropriate for costs to follow the event because litigants could be discouraged from bringing rights-

1      Mr Swery did not appear or otherwise participate in Mr Dotcom’s application.

2      Dotcom v Twentieth Century Fox Film Corp [2017] NZHC 3236.

3 At [39].

4      Section 14 of NZBORA states that the freedom of expression includes “the freedom to seek, receive, and impart information”.

5      NZBORA, s 27.

6      Rule 14.7(e).

7      Rule 14.7(g).

related claims.8 In Wong v Registrar of the Auckland High Court, Duffy J dismissed an application for access to information about a jury that had convicted the applicant on charges relating to money laundering and drug supply.9 The applicant claimed that ss 24 (rights of persons charged), 25 (minimum standards of criminal procedure) and 27 (right to justice) of NZBORA were in tension with provisions in the Juries Act 1981 protecting juror confidentiality. Subsequently, Duffy J considered the rights issues raised in that case justified departure from ordinary scale costs.10 But that is a very different case from the present. In Wong, issues under NZBORA were at the heart of the applicant’s arguments. In her costs judgment, Duffy J described the rights-related arguments as “worthy of consideration”,11 not “plainly apparent”12 and that her Honour’s “conclusion was only reached after a careful consideration of case law on the topic.”13

[6]                  By contrast, Mr Dotcom’s application to access the court file was not argued with reference to NZBORA. Though ss 14 and 27 may be relevant to such applications, they assumed no particular relevance in the context of his case. Rather, the application and hearing proceeded as an orthodox application for access to a court file. That distinguishes this case from Wong, in which the NZBORA issues raised were of sufficient complexity to justify Duffy J engaging in detailed analysis of New Zealand and foreign case law.

[7]                  Counsel for Mr Dotcom submits that the New Zealand Supreme Court noted in Dotcom v United States of America that there is a high content of natural justice in extradition proceedings.14 I do not disagree. However, Mr Dotcom’s application for access to the court file was not in itself an extradition proceeding; its purpose was to obtain material which he argued had relevance to his extradition proceedings before the New Zealand courts.

8      A point made by Glazebrook J in the context of indemnity costs in Attorney-General v Udompun

[2005] 3 NZLR 204 (CA) at [186].

9      Wong v Registrar of the Auckland High Court [2008] 1 NZLR 849 (HC).

10     Wong v Registrar Auckland High Court HC Auckland CIV-2007-404-5292, 3 March 2008.

11 At [28].

12 At [30].

13 At [30].

14     Dotcom v United States of America [2014] NZSC 24, [2014] 1 NZLR 355 at [184] per McGrath and Blanchard JJ.

[8]                  For these reasons, I am not satisfied the claim sufficiently engaged issues of rights or justice that would justify departing from ordinary scale costs. I am reinforced in this conclusion by the principle that costs determinations should be predictable and expeditious.

Certification for second counsel

[9]                  The respondents argue that certification should be made for second counsel because: the case was brought urgently, requiring preparation in short order; the background to Mr Dotcom’s application is complex; given the confidential nature of the court file to which Mr Dotcom sought access, it was necessary to defend the case thoroughly; and the applicants also had second counsel at the hearing. Counsel for the applicant disagree with these propositions, or argue they do not support the respondents’ case for additional costs.

[10]              In my view, this is not an appropriate case to certify for second counsel. Though the application was described as “urgent”, its progress from service to hearing was conducted under ordinary timeframes and timetabling orders were made by consent. Mr Sumpter, counsel for the respondents, acted in the underlying proceedings which were subject to Mr Dotcom’s request for access and also in another matter concerning the present parties. He was therefore familiar with the complexities of the factual background. Lastly, as Chambers J observed in Nomoi Holdings Ltd v Elders Pastoral Holdings Ltd, when assessing whether to certify for second counsel “the determination of costs is not related to the actual counsel involved” but is rather “objective and is focused on the nature of the proceeding”.15

Conclusion

[11]              For the reasons above, I consider there is no need to depart from ordinary costs on a 2B basis in this case.

15     Nomoi Holdings Ltd v Elders Pastoral Holdings Ltd (2001) 15 PRNZ 155 (HC) at [21].

[12]              I accordingly award the respondents the costs and disbursements listed in the schedule to their memorandum dated 24 January 2018, less the amount provided for second counsel.

Fitzgerald J