DOTCOM v THE DEPUTY SOLICITOR-GENERAL [2015] NZHC 1197

DOTCOM v THE DEPUTY SOLICITOR-GENERAL [2015] NZHC 1197

Strike out application refused. The plaintiffs raised arguable and non‑frivolous grounds: (a) the fact the US forfeiture order was obtained by default via fugitive disentitlement could be a relevant consideration for the Deputy Solicitor‑General under MACMA s55 and s27 and cannot be summarily dismissed at strike out; (b) s143 CPRA does not clearly or unambiguously provide the plaintiffs an adequate post‑registration remedy and should not be treated as a privative ouster of judicial review; (c) reasonable apprehension of bias arising from the delegation to a deputy embedded in Crown Law and concurrent roles is arguable and requires evidence. On these bases the claims are not so clearly...

Citation
[2015] NZHC 1197
Parties
First Plaintiff: Kim Dotcom; Second Plaintiff: Bram van der Kolk; First Defendant: The Deputy Solicitor-General (Criminal); Second Defendant: The Commissioner of Police
Court
High Court
Jurisdiction
New Zealand
Judgment Date
3 June 2015
Procedural Posture
Judicial Review / Interlocutory: Strike Out Application and Application for Interim Relief (declaration)
Outcome
Defendants' strike out application dismissed; interim declaratory relief granted restraining further action on registration of US forfeiture order pending further order
Legal Topics
Fugitive Disentitlement, Registration of Foreign Forfeiture Orders, Natural Justice (procedural Fairness), Perceived Bias and Conflict of Interest, Statutory Authorisation Under MACMA S55, Relief From Foreign Forfeiture Under CPRA S143, NZBORA S21 Unreasonable Seizure
Extradition Law Mutual Assistance in Criminal Matters Civil Forfeiture Law Administrative Law Constitutional and Human Rights Law Fugitive Disentitlement Registration of Foreign Forfeiture Orders Natural Justice (procedural Fairness) +4 more

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Parties

Kim Dotcom

First Plaintiff

Bram van der Kolk

Second Plaintiff

The Deputy Solicitor-General (Criminal)

First Defendant

The Commissioner of Police

Second Defendant

Procedural Posture

Judicial Review / Interlocutory: Strike Out Application and Application for Interim Relief (declaration)

Legal Issues

  1. 1 Whether the Deputy Solicitor-General (Criminal) erred in authorising registration of a US forfeiture order by failing to consider that the US order was obtained via fugitive disentitlement and thus obtained without hearing (natural justice issue)
  2. 2 Whether s27 MACMA bars authorisation where request would prejudice New Zealand's national interests or require unlawful steps
  3. 3 Whether s143 CPRA provides an effective post-registration remedy to the subject of a foreign forfeiture order (and thus renders any natural justice complaint irrelevant at authorisation stage)

Ratio Decidendi

Strike out application refused. The plaintiffs raised arguable and non‑frivolous grounds: (a) the fact the US forfeiture order was obtained by default via fugitive disentitlement could be a relevant consideration for the Deputy Solicitor‑General under MACMA s55 and s27 and cannot be summarily dismissed at strike out; (b) s143 CPRA does not clearly or unambiguously provide the plaintiffs an adequate post‑registration remedy and should not be treated as a privative ouster of judicial review; (c) reasonable apprehension of bias arising from the delegation to a deputy embedded in Crown Law and concurrent roles is arguable and requires evidence. On these bases the claims are not so clearly...

Court Disposition

Defendants' strike out application dismissed; interim declaratory relief granted restraining further action on registration of US forfeiture order pending further order

Orders

  • The Commissioner of Police is declared to take no further action consequent upon the Deputy Solicitor‑General's authorisation to apply to register the US forfeiture orders dated 27 March 2015 until further order of this Court
  • Defendants to pay plaintiffs' costs for both interlocutory applications on a 2B basis; certificate for second counsel; parties to file memoranda on costs if not agreed