DOTCOM v DEPUTY SOLICITOR-GENERAL (CROWN LEGAL RISK) [2022] NZHC 2866

DOTCOM v DEPUTY SOLICITOR-GENERAL (CROWN LEGAL RISK) [2022] NZHC 2866 [3 November2022]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2017-404-001679[2022] NZHC 2866BETWEEN KIM DOTCOMApplicantAND DEPUTY SOLICITOR-GENERAL(CROWN LEGAL RISK)RespondentCIV-2012-404-001928BETWEEN KIM DOTCOMPlaintiffAND HER MAJESTY'S ATTORNEYGENERALFirst DefendantAND THE DISTRICT COURT AT NORTHSHORESecond DefendantHearing: (On the papers)Counsel: Ron Mansfield KC and Simon Colgan for the Applicant/PlaintiffDavid Boldt and Briar Charmley for the Respondent/DefendantsJudgment: 3 November 2022JUDGMENT OF MOORE J[Application for leave to appeal retrospectively]This judgment was delivered by me on 3 November 2022 at 3:00 pmpursuant to Rule 11.5 of the High Court Rules.Registrar/ Deputy RegistrarDate:Background[1] Kim Dotcom, the Attorney-General and the Deputy Solicitor-General areinvolved in litigation precipitated by the seizure of electronic devices fromMr Dotcom's residence and another address in 2012.[2] On 25 July 2022, Hinton J delivered judgment:1(a) granting the Attorney-General's application for orders releasing fourformer or serving Police officers from undertakings as toconfidentiality that they had given to Mr Dotcom pursuant to orders ofthis Court; and(b) dismissing Mr Dotcom's application for judicial review of the DeputySolicitor-General's decisions under the Mutual Assistance in CriminalMatters Act 1992 to send clones and originals of particular seizedelectronic devices to United States of America authorities.[3] On 22 August 2022, Mr Dotcom filed a notice of appeal against both decisionsin the Court of Appeal. In response, the Deputy Solicitor-General filed a protest tojurisdiction. His opposition was that Mr Dotcom's appeal was against an interlocutorydecision and thus required leave to appeal.[4] On 21 September 2022, Goddard J issued a Minute expressing his preliminaryview that there was a serious argument that the application was for relief ancillary tothat claimed in a pleading and therefore interlocutory.2 If leave was required, theJudge considered it "difficult to identify a basis on which leave could be refused".3 Arefusal to grant leave would mean there was no right of appeal whatsoever against thisCourt's decision concerning the release of the undertakings.4 The Judge encouragedthe parties to confer and consider whether leave could be sought retrospectively fromthis Court by consent.51 Dotcom v Attorney-General [2022] NZHC 1708.2 Dotcom v Attorney-General CA426/2022, 21 September 2022 (Minute of Goddard J) at [5].3 At [6].4 At [6].5 At [7].[5] On 21 October 2022, the parties filed a joint memorandum of counsel in thisCourt. Counsel advise that they have conferred and agree with Goddard J's suggestedapproach. The parties thus seek that Mr Dotcom's application for leave to appealHinton J's decision be granted retrospectively and by consent.Should the application for leave to appeal be granted?[6] The ultimate question is whether the interests of justice are served by grantingleave.6[7] I am satisfied that is the case. As noted by Goddard J, the proceeding in whichthe undertakings were given has concluded, save for the question whether theundertakings should remain in force or be discharged. There will be no final judgmentdelivered in that proceeding from which an appeal could be brought as of right. Theeffect of a refusal to grant leave at this stage would be that there is no right of appealagainst the decision.[8] I therefore consider that the interests of justice require a grant of leave toappeal.Result[9] Leave to appeal is granted.Moore JSolicitors:Mr Mansfield KC, AucklandMr Colgan, AucklandMr Boldt, WellingtonCrown Law Office, Wellington6 Greendrake v District Court of New Zealand [2020] NZCA 122 at [6(e)].