Dotcom v United States of America

[2018] NZCA 5

IN THE COURT OF APPEAL OF NEW ZEALAND

CA128/2017
[2018] NZCA 5

BETWEEN	KIM DOTCOM Appellant
AND	THE UNITED STATES OF AMERICA First Respondent
AND	THE DISTRICT COURT AT NORTH SHORE Second Respondent

CA493/2017
BETWEEN	KIM DOTCOM Appellant
AND	THE UNITED STATES OF AMERICA Respondent

CA12/2018
BETWEEN	KIM DOTCOM Appellant
AND	THE DISTRICT COURT AT NORTH SHORE First Respondent
AND	THE DEPUTY SOLICITOR-GENERAL (CRIMINAL) Second Respondent
AND	THE MINISTER OF JUSTICE Third Respondent
AND	THE UNITED STATES OF AMERICA Fourth Respondent
AND	THE DEPUTY SOLICITOR-GENERAL (CROWN LEGAL RISK) Fifth Respondent

Court:

Kós P, French and Miller JJ

Counsel:

R M Mansfield and S L Cogan for Appellant
K Raftery QC, M J Ruffin, F Sinclair and Z Fuhr for Respondents

Judgment:

(On the papers)

5 February 2018 at 11.00 am

JUDGMENT OF THE COURT

A        The application dated 30 January 2018 to amend the application for special leave (CA493/2017) and statement of claim (CA128/2017) is dismissed. 

B        Costs are reserved.

____________________________________________________________________

REASONS OF THE COURT

(Given by Miller J)

1. The application dated 30 January 2018 to amend the application for special leave (CA493/2017) and statement of claim (CA128/2017) is dismissed.  Costs are reserved.

2. The Court has considered the application and notice of opposition and delivers this judgment on the papers, noting that it is not dispositive of any appeal and having regard to r 5 of the Court of Appeal (Civil) Rules 2005 and (for CA12/2018) s 49 of the Senior Courts Act 2016.

3. The application in substance invites the Court to recall its decision (see the minute of 29 January 2018) refusing to join the appeal in CA12/2018 with those to be heard on 12 February.  The Court found that proposal inexpedient, and it continues to do so.  Nothing in the papers now filed justifies a different course of action than we suggested there.  Counsel identifies no risk of injustice; Mr Dotcom is not being denied a hearing in CA12/2018.  And we do not accept that it will be more efficient to combine the appeals, especially since the scope of the appeal in CA12/2018 is controversial. 

4. In addition, we accept Mr Raftery QC’s submission that amendment in the appeals to be argued on 12 February would be inapt, and perhaps without jurisdiction.  The issues that Mr Dotcom wants to raise were not before Gilbert J.

5. We will revisit the scope and management of the appeal in CA12/2018 after the February hearing.  In the meantime, counsel should negotiate a timetable that assumes a fixture on 23 and 24 April.

Solicitors:
Anderson Creagh Lai Ltd, Auckland for Applicant
Crown Law Office, Wellington for Respondent