DOTCOM & ORS v ATTORNEY-GENERAL & ANOR [2017] NZHC 1621

DOTCOM & ORS v ATTORNEY-GENERAL & ANOR [2017] NZHC 1621

The Court held the Court of Appeal's earlier decision conclusively determined that the raw communications were not relevant or discoverable for the damages inquiry and issue estoppel bars relitigation by Mr Dotcom; moreover, on the merits and after the mandatory s70 balancing exercise the public interest in withholding the raw communications and redactions outweighed the public interest in disclosure because disclosure would likely prejudice national security and related interests; accordingly an order under s70 was made limiting disclosure to the special advocate, his expert adviser and the Court, and the raw communications were held not discoverable.

Citation
[2017] NZHC 1621
Parties
First Plaintiff: Kim Dotcom; Second Plaintiff: Mona Dotcom; Third Plaintiff (discontinued): Bram van der Kolk; Fourth Plaintiff (discontinued): Junelyn van der Kolk; Sixth Plaintiff (discontinued): Finn Batato; Seventh Plaintiff: Vestor Limited; First Defendant: Her Majesty's Attorney-General (on behalf of New Zealand Police); Second Defendant: Her Majesty's Attorney-General (on behalf of GCSB)
Court
High Court
Jurisdiction
New Zealand
Judgment Date
14 July 2017
Procedural Posture
Civil Damages (originating From Judicial Review) / Interlocutory — Discovery and S70 Evidence Act Application
Outcome
Application under s70 granted; raw communications not discoverable; costs reserved
Legal Topics
Issue Estoppel, Discovery, Public Interest Immunity, Section 70 Evidence Act, Baigent Damages, Invasion of Privacy, Exemplary and Aggravated Damages, Search and Seizure, GCSB Interception
Administrative Law Evidence Privacy Civil Procedure National Security Tort (negligence) Issue Estoppel Discovery +7 more

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Parties

Kim Dotcom

First Plaintiff

Mona Dotcom

Second Plaintiff

Bram van der Kolk

Third Plaintiff (discontinued)

Junelyn van der Kolk

Fourth Plaintiff (discontinued)

Finn Batato

Sixth Plaintiff (discontinued)

Vestor Limited

Seventh Plaintiff

Her Majesty's Attorney-General (on behalf of New Zealand Police)

First Defendant

Her Majesty's Attorney-General (on behalf of GCSB)

Second Defendant

Procedural Posture

Civil Damages (originating From Judicial Review) / Interlocutory — Discovery and S70 Evidence Act Application

Legal Issues

  1. 1 Whether the Court of Appeal decision gives rise to issue estoppel preventing discovery of raw communications
  2. 2 Whether the raw communications are relevant and discoverable to the damages claims (including aggravated and exemplary damages)
  3. 3 Whether an order under s70 of the Evidence Act should prevent disclosure on national security grounds

Ratio Decidendi

The Court held the Court of Appeal's earlier decision conclusively determined that the raw communications were not relevant or discoverable for the damages inquiry and issue estoppel bars relitigation by Mr Dotcom; moreover, on the merits and after the mandatory s70 balancing exercise the public interest in withholding the raw communications and redactions outweighed the public interest in disclosure because disclosure would likely prejudice national security and related interests; accordingly an order under s70 was made limiting disclosure to the special advocate, his expert adviser and the Court, and the raw communications were held not discoverable.

Court Disposition

Application under s70 granted; raw communications not discoverable; costs reserved

Orders

  • Pursuant to s70 Evidence Act 2006, redacted parts of defendants' discovery and the plaintiffs' raw intercepted communications shall not be disclosed in this proceeding to any person other than the special advocate, his expert adviser and the Court.
  • Raw communications are not discoverable in this proceeding.