MATHIAS ORTMANN v UNITED STATES OF AMERICA [2021] NZSC 9

MATHIAS ORTMANN v UNITED STATES OF AMERICA [2021] NZSC 9 [22 February 2021]IN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUISC 54/2018[2021] NZSC 9BETWEEN MATHIAS ORTMANNFirst AppellantBRAM VAN DER KOLKSecond AppellantFINN HABIB BATATOThird AppellantAND UNITED STATES OF AMERICAFirst RespondentDISTRICT COURT AT NORTH SHORESecond RespondentSC 55/2018BETWEEN FINN HABIB BATATOAppellantAND UNITED STATES OF AMERICARespondentSC 56/2018BETWEEN MATHIAS ORTMANNFirst AppellantBRAM VAN DER KOLKSecond AppellantAND UNITED STATES OF AMERICARespondentSC 57/2018BETWEEN KIM DOTCOMAppellantAND UNITED STATES OF AMERICARespondentSC 58/2018BETWEEN KIM DOTCOMAppellantAND UNITED STATES OF AMERICAFirst RespondentDISTRICT COURT AT NORTH SHORESecond RespondentCourt: Winkelmann CJ, Glazebrook, O'Regan, Ellen France andWilliams JJCounsel: G M Illingworth QC, P J K Spring and A K Hyde forMessrs Ortmann and van der KolkA G V Rogers for Mr BatatoR M Mansfield and S L Cogan for Mr DotcomD J Boldt, F R J Sinclair and Z A Fuhr for United Statesof AmericaJudgment: 22 February 2021JUDGMENT OF THE COURTA We remit the proceedings to the Court of Appeal for theidentification of the outstanding issues in relation to thejudicial review appeals (SC 54/2018 and SC 58/2018) and theresolution of those issues.B We direct the Registrar to provide to the Court of Appealcopies of the submissions made by the parties in response tothis Court's request for submissions in its substantivejudgment (Ortmann v United States of America [2020]NZSC 120).____________________________________________________________________REASONS[1] In our judgment of 4 November 2020, we allowed the appellants' appeals inSC 54/2018 and SC 58/2018 relating to the applications for judicial review.1However, the judicial review aspect of the appeals was limited to determining whetherthe Court of Appeal had erred in holding that the judicial review proceedings were anabuse of process.2 We sought submissions from the parties as to whether this Courtshould address the issues that remain to be resolved in another hearing or remit theproceedings to the Court of Appeal for that Court to do so.3 In relation to thosesubmissions we said:4Those submissions must identify which issues remain outstanding in thejudicial review proceedings and set out the relevant party's view as to whichcourt should resolve these issues. Outstanding issues are those which havenot been addressed as part of the case stated appeals. The submissions shouldnot seek to relitigate issues that have already been resolved by the outcome ofthe case stated appeals.[2] We have now received those submissions. The parties are divided on whichissues remain to be resolved (if any) and on which Court should address anyunresolved issues. Both Mr Dotcom and the United States argue that the case shouldbe remitted to the Court of Appeal. In Mr Dotcom's case, the reason given for thisstance is as follows:This will ensure that, when the matter ultimately comes before this Court, thisCourt will have the benefit of a reasoned appellate decision in the usual way.Otherwise, the Appellant is denied a right of appeal and the Court is deniedthe benefit of the issues on appeal having been appropriately considered andrefined. This will also be a better utilisation of this Court's resources.[3] The United States supports that decision, largely for the same reasons.[4] On the other hand, the remaining appellants argue that this Court shouldresolve any outstanding issues in relation to judicial review. They argue that thiswould be more appropriate because this Court has the most recent experience of thecase and is therefore best placed to efficiently hear the remaining issues. They also1 Ortmann v United States of America [2020] NZSC 120.2 At [562] and [596].3 At [597].4 At [597].say that because this Court has made some obiter remarks that bear upon theoutstanding issues identified by the appellants in their submissions, this Court is theappropriate Court to address those remarks. They also point out that, if the matterwere determined by the Court of Appeal, it is highly likely the unsuccessful partywould seek leave to appeal to this Court.[5] We are reluctant to override the preference of Mr Dotcom and the UnitedStates, given that both attach importance to the potential for an appeal against thedecision resolving outstanding issues. While we acknowledge the position of the otherappellants, particularly their argument that remission to the Court of Appeal, with thepossibility of a further appeal to this Court, could cause further delay, we consider itwould not be appropriate for this Court to deal with the issues directly in the face ofopposition from both Mr Dotcom as the other appellant and the United States as therespondent.[6] We therefore determine that the matter should be remitted to the Court ofAppeal.[7] It is apparent from the submissions that were filed by the parties that there is asubstantial division of view about which issues remain unresolved (if any). As we areremitting the matter to the Court of Appeal, we do not consider that we should attemptto resolve that dispute, but rather should leave it to the Court of Appeal to do sowhether as a preliminary issue or as part of a single hearing on the outstanding issues.[8] For the above reasons, we remit the matter to the Court of Appeal for theidentification and resolution of any outstanding issues in relation to the judicial reviewappeals (in this Court, SC 54/2018 and SC 58/2018). We direct the Registrar toprovide to the Court of Appeal copies of the submissions made by all parties inresponse to the request for submissions made in our substantive judgment.Solicitors:Keegan Alexander, Auckland, for Messrs Ortmann and van der KolkAnderson Creagh Lai Ltd, Auckland, for Mr DotcomCrown Law Office, Wellington, for United States of America