KIM DOTCOM v HER MAJESTY’S ATTORNEY-GENERAL on behalf of the Government Communications Security Bureau [2019] NZCA 412

KIM DOTCOM v HER MAJESTY'S ATTORNEY-GENERAL on behalf of the Government CommunicationsSecurity Bureau [2019] NZCA 412 [6 September 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA512/2017[2019] NZCA 412BETWEEN KIM DOTCOMAppellantAND HER MAJESTY'S ATTORNEY-GENERALon behalf of the GovernmentCommunications Security BureauRespondentHearing: 1-2 May 2019Court: Miller, Brown and Clifford JJCounsel: R M Mansfield and S L Cogan for AppellantD J Boldt and K L Kensington for RespondentC R Carruthers QC as amicus curiaeJudgment: 6 September 2019 at 2.00 pmJUDGMENT OF THE COURTA The appeal is dismissed.B Mr Dotcom must pay the respondent costs for a standard appeal on a bandB basis with usual disbursements. We certify for second counsel.____________________________________________________________________REASONS OF THE COURT(Given by Miller J)Table of ContentsIntroduction [1]Process for handling the disputed information in this Court [7]Mr Dotcom's claim and GCSB's defence [8]The general nature of the disputed information [11]The State's claim to immunity from disclosure [12]The nature of the claimed national security interest [12]No Prime Ministerial certificate as to national security risk [14]National security invoked under s 70 Evidence Act instead [19]The relationship between s 70 and s 27 [21]The decision required of a court under s 70 [23]Jurisdiction to conduct a closed court process [35]The appointment of Mr Grieve as amicus and Special Advocate [44]Jurisdiction to appoint a Special Advocate under s 70 [57]Did the Special Advocate process miscarry? [63]Evaluating the competing public interests [68]The public interest in disclosure [69]The public interest in non-disclosure [72]The balancing exercise [73]Decision [74]Introduction[1] The Government Communications Security Bureau ("GCSB") unlawfullyintercepted Mr Dotcom's private communications at the request of the New ZealandPolice, who were conducting an operation in aid of United States authorities who havesought his extradition to face criminal charges in that jurisdiction. The interceptsbegan on or about 16 December 2011 and concluded some 10 days after Mr Dotcomwas arrested on 20 January 2012. Later that year Mr Dotcom commenced judicialreview proceedings challenging the lawfulness of his arrest, and the search warrantsauthorising the police actions on 20 January.[2] In the course of the 2012 judicial review proceedings, it became apparent thatGCSB had acted unlawfully in intercepting Mr Dotcom's communications.GCSB had failed to appreciate that Mr Dotcom's resident-class visa precluded itssurveillance.11 Government Communications Security Bureau Act 2003 (repealed), s 14.[3] Thereafter Mr Dotcom commenced these civil proceedings in which he seeksdamages for that breach of his privacy interests.2 GCSB has admitted liability.At GCSB's invitation, the High Court has entered judgment against it.3 All thatremains is to fix the damages payable.[4] The present appeal is brought against an interlocutory judgment ofthe High Court in Mr Dotcom's damages claim.4 Gilbert J granted GCSB'sapplication for an order that certain information, comprising interceptedcommunications, not be disclosed in the proceeding on the ground, as relevant here,that it related to matters of State and the public interest in the information beingdisclosed was outweighed by the public interest in withholding it.[5] Mr Dotcom was represented at the High Court disclosure hearing (under s 70of the Evidence Act 2006), but under a process in which neither he nor his counselwere permitted to see information that GCSB wanted to keep secret. Rather, it wasdisclosed to a Special Advocate, Stuart Grieve QC, who was originally appointed bythe Court with the parties' approval. His brief from the Court was ambiguous, withconsequences we will need to examine, but it undoubtedly extended to advancingarguments available to Mr Dotcom. Mr Grieve negotiated the disclosure of somematerial that GCSB had initially withheld. Other material was made the subject ofsummaries agreed between Mr Grieve and Crown counsel. Mr Grieve took advicefrom an independent expert about GCSB's claim that the balance, which we will callthe disputed information, ought not be disclosed in this proceeding for nationalsecurity reasons. Ultimately Mr Grieve found himself unable to resist the GCSBapplication with respect to that information. Shortly before the s 70 hearingMr Dotcom changed his own counsel, instructing Mr Mansfield and Mr Cogan, andsought to have Mr Grieve dismissed. Gilbert J declined that request.52 The damages proceedings were severed from the judicial review proceedings by consent.Mr Dotcom and Mona Dotcom are now the only plaintiffs, the others having settled. The otherswere Bram Van Der Kolk, Junelyn Van Der Kolk, Finn Batato, Mathias Ortmann, and Vestor Ltd.3 Dotcom v Attorney-General HC Auckland CIV-2013-404-2168, 16 December 2016 (Minute No.4of Gilbert J).4 Dotcom v Attorney-General [2017] NZHC 1621 [Judgment of Gilbert J].5 Dotcom v Attorney-General HC Auckland CIV-2013-404-2168, 31 March 2017 [Minute onapplication to dismiss amicus].[6] Mr Dotcom says that the s 70 hearing in the High Court miscarried because ofthe way in which the Special Advocate's role was constituted and performed there.He asks us to consider whether there is any public interest in withholding the disputedinformation, and if so to balance afresh the public interests for and against disclosure.Process for handling the disputed information in this Court[7] We needed to view the disputed information and hear argument aboutthe precise nature of the State interest in its non-disclosure, and these matters had tobe kept from Mr Dotcom and his counsel pending judgment on the merits ofthe appeal. Counsel agreed that we should appoint amicus curiae in lieu of a SpecialAdvocate.6 Mr Carruthers QC had appropriate security clearances. His brief was toassist the Court by scrutinising and, to the extent he thought fit, criticising the conductof the Special Advocate and the non-disclosure orders made under s 70 of the EvidenceAct in the High Court.7 We viewed the material and heard classified submissionsabout it from Mr Carruthers and Crown counsel in a closed hearing held on 1 May2019.8 We convened in open Court the following day to hear unclassified submissionsfrom all counsel.Mr Dotcom's claim and GCSB's defence[8] The damages claim is brought for unlawful and unreasonable interception ofprivate communications, for breach of a duty of care owed to persons lawfully inNew Zealand to take reasonable care in the use of interception technology, and forbreach of privacy.9 It is said that GCSB intercepted private communications withouttaking care to check its power to do so, that it continued the interception for 10 daysafter the purported justification (the police operation targeting Mr Dotcom) ended, andthat it tried, and is still trying, to conceal the extent of its unlawful conduct.Its behaviour is said to have been high-handed and oppressive. Mr Dotcom is said tohave experienced loss of dignity, anxiety, humiliation and embarrassment fromthe invasion of his family and private life.6 Dotcom v Attorney-General CA512/2017, 29 January 2018 (Minute of Miller J).7 Memorandum of counsel for Appellant regarding appointment of amicus curiae, 4 July 2018; andRespondent's Memorandum regarding new amicus, 29 June 2018.8 This was done in a secure facility in the High Court at Wellington.9 Second Amended Statement of Claim, dated 29 July 2016.[9] The relief claimed comprises declarations that GCSB's conduct was unlawful,and public law compensation or damages including aggravated and exemplarydamages. The amount sought has not been specified pending completion of discovery.Indemnity costs are also sought.[10] As noted, GCSB has admitted liability. The declarations sought have beengranted. However, GCSB does not accept that the surveillance was as extensive asMr Dotcom claims and it says that any continued interception after 20 January 2012was inadvertent. It denies that its conduct was high-handed or contumelious. It hasput Mr Dotcom to proof of the dignitary losses he claims to have suffered.The general nature of the disputed information[11] The information that is relevant to the damages claim and which GCSB wishesto withhold mostly comprises private communications involving Mr Dotcom andothers who were also the subject of the police investigation. These counsel describedas "raw communications". Some are personal in nature. There are also reportsprepared by GCSB for the Police that quote or discuss raw communications.The State's claim to immunity from disclosureThe nature of the claimed national security interest[12] It is accepted that no national security interest attaches to the informationcontained in the raw communications. GCSB claims rather that disclosure wouldadversely affect its operational activities and reveal or permit deduction of sources,method of collection, capacity, or capability. A senior GCSB official (name redacted)has deposed that in their opinion release of the redacted material would causeirreparable prejudice to the security of GCSB personnel, damage to arrangements withother governments whose interests are engaged, and damage to the effectiveness ofvaluable intelligence operations.[13] Mr Dotcom met this evidence with an assertion that much of whatMr Mansfield called GCSB's "tradecraft" is in the public domain, a consequence inpart of leaks by Edward Snowden and others of documents prepared by securityagencies in the United States and other jurisdictions. He tendered evidence, notablyin the form of an affidavit of Glenn Greenwald, a leading investigative journalist andlawyer. In Mr Greenwald's opinion, disclosure would not prejudice the interestsidentified by GCSB. He describes publicly-known surveillance techniques andmethods practised by intelligence agencies which share information with New Zealandunder the "Five Eyes" arrangement established after World War 2.No Prime Ministerial certificate as to national security risk[14] Section 27(1) of the Crown Proceedings Act 1950 allows a court to order thatthe Crown give discovery and answer interrogatories, in any proceeding to which it isa party or third party, as if it were a private person of full age and capacity.Section 27(1) is "without prejudice" to any rule of law which authorises or requiresnon-disclosure where disclosure would be injurious to the public interest.[15] The section goes on to authorise rules securing that the existence of a documentwill not be disclosed if the Prime Minister certifies that disclosure of its existencewould likely prejudice certain interests, which include national security:27 Discovery(3) Without prejudice to the proviso to subsection (1), any rules made forthe purposes of this section shall be such as to secure that the existenceof a document will not be disclosed if—(a) the Prime Minister certifies that the disclosure of the existenceof that document would be likely to prejudice—(i) the security or defence of New Zealand orthe international relations of the Government ofNew Zealand; or(ii) any interest protected by section 7 of the OfficialInformation Act 1982; or(b) the Attorney-General certifies that the disclosure ofthe existence of that document would be likely to prejudicethe prevention, investigation, or detection of offences.1010 The original s 27(3), amended in 1982, simply provided non-disclosure "if, in the opinion ofa Minister of the Crown, it would be injurious to the public interest to disclose the existence [of agiven document]".[16] Rule 8.26(a) of the High Court Rules provides for such a Prime Ministerialcertificate:8.26 Crown documents and public interestAn order made under section 27(1) of the Crown Proceedings Act 1950 mustbe construed as not requiring disclosure of the existence of any document if—(a) the Prime Minister certifies that the disclosure of the existence of thatdocument would be likely to prejudice—(i) the security or defence of New Zealand or the internationalrelations of the Government of New Zealand; or(ii) any interest protected by section 7 of the Official InformationAct 1982; [17] At an early stage of proceedings, on 16 August 2012, a certificate directingthe Police and GCSB that certain information not be disclosed was provided bythe then acting Prime Minister, the Hon Bill English. It stated: I am satisfied that:2.1 [Disclosing] the information requested would likely prejudicethe security of New Zealand, both as referred to in Section 8(2)(c) ofthe Government Communications Security Bureau Act 2003, andgenerally by compromising the future supply of information andintelligence from law enforcement agencies and the intelligenceservices of foreign states with which New Zealand haslong-established partnership arrangements.2.2 [Disclosing] the information requested would likely prejudicethe security of New Zealand in relation to the detection or preventionof serious crime by inhibiting the free and candid flow of informationto and from the Bureau to an extent that would compromisethe Bureau's functions in terms of Section 8(2)(c) of the GovernmentCommunications Security Bureau Act 2003.I direct that neither you nor any other person subject to this direction shallprovide any information or answer any question in this proceeding orotherwise that may tend to disclose any such information as requested inthe 15 August letter unless any Court with the necessary jurisdiction holds thatmy objection has not been taken in accordance with law, or for any othersufficient reason.[18] The certificate was withdrawn after GCSB recognised that it had actedunlawfully. No replacement has been issued.National security invoked under s 70 Evidence Act instead[19] As we have explained, GCSB nonetheless maintains that disclosure ofthe disputed information would be likely to prejudice New Zealand's national security.It invokes s 70 of the Evidence Act, under which a court may order non-disclosure ofinformation relating to a "matter of State". That section provides:70 Discretion as to matters of State(1) A Judge may direct that a communication or information that relatesto matters of State must not be disclosed in a proceeding if the Judgeconsiders that the public interest in the communication or informationbeing disclosed in the proceeding is outweighed by the public interestin withholding the communication or information.(2) A communication or information that relates to matters of Stateincludes a communication or information—(a) in respect of which the reason advanced in support ofan application for a direction under this section is one of thoseset out in sections 6 and 7 of the Official Information Act1982; or(b) that is official information as defined in section 2(1) ofthe Official Information Act 1982 and in respect of whichthe reason advanced in support of the application fora direction under this section is one of those set out in section9(2)(b) to (k) of that Act.(3) A Judge may give a direction under this section that a communicationor information not be disclosed whether or not the communication orinformation is privileged by another provision of this subpart orwould, except for a limitation or restriction imposed by this subpart,be privileged.[20] It will be seen that "matters of State" receives a non-exhaustive definition viaincorporated provisions of the Official Information Act 1982. That Act provides ins 6(a) that good reason to withhold official information exists if disclosure would belikely to prejudice the security or defence of New Zealand or the international relationsof the Government of New Zealand.The relationship between s 70 and s 27[21] The relationship between s 70 of the Evidence Act and s 27 of the CrownProceedings Act is in some respects unclear, as various commentators have noted.11We observe that the two provisions are in alignment in three respects. First, the court'spower to order discovery by the Crown under s 27(1) is subject to any rule of lawauthorising or requiring non-disclosure of documents on public interest grounds andthe public interest is the criterion for non-disclosure under s 70. Second, the intereststhat may be protected under both statutes overlap. They include national security andinternational relations. Third, in both cases the court decides. Section 27 does not sayso expressly, but the questions whether any rule of law applies and whether it requiresor authorises non-disclosure are plainly questions of law that must be answered inparticular factual contexts.12[22] Under s 27 the Crown must invoke a rule of law under which disclosure maybe withheld. It has traditionally relied on the common law doctrine of public interestimmunity, under which interests including national security and international relationsmay justify non-disclosure under s 27.13 Courts have long held that it is for them todecide whether a common law claim to public interest immunity is well founded,notwithstanding the provision of a relevant opinion or certificate.14 The authoritiesalso establish that, in consequence:11 Law Commission A New Crown Civil Proceedings Act for New Zealand (NZLC IP35, 2014) at[7.11]−[7.12] and [7.18]−[7.23]; Andrew Beck and others McGechan on Procedure — High CourtRules (looseleaf ed, Brookers) at [HR8.26.02]; and Graham Taylor Judicial Review: A NewZealand Perspective (4th ed, LexisNexis, Wellington, 2018) at 10.04.12 Corbett v Social Security Commission [1962] NZLR 878 (CA) at 911 per North J and 918 perCleary J; Brightwell v Accident Compensation Corporation [1985] 1 NZLR 132 (CA) at 139,150 and 157; Attorney-General v Birss [1991] 1 NZLR 669 (CA); Choudry v Attorney-General[1999] 2 NZLR 582 (CA) [Choudry (No 1)]; and Choudry v Attorney-General [1999] 3 NZLR399 (CA) [Choudry (No 2)].13 See R v Chief Constable of West Midlands Police ex parte Wiley [1995] 1 AC 274 at 281; andR (Mohamed) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2009] EWHC2549, [2009] 1 WLR 2653 at [35].14 Conway v Rimmer [1968] AC 910 (HL) at 951–952; Konia v Morley [1976] 1 NZLR 455 (CA)at 460–461; and Fletcher Timber Ltd v Attorney-General [1984] 1 NZLR 290 (CA) at 296 and306–307.(a) Claims to immunity must state with some precision the grounds onwhich non-disclosure is justified, so that the claims can be evaluated.15(b) If it thinks it necessary, a court will examine the documents to satisfyitself that the claim is justified.16The decision required of a court under s 70[23] The decision required of a court under s 70 is whether a communication orinformation relating to matters of State is not to be disclosed in a proceeding.[24] Disclosure may be withheld if the judge considers that the public interest inwithholding disclosure outweighs the public interest in making it. In other words,the weighing and balancing of competing public interests is done by the court.There is no class of documents that is presumptively immune. The section does notstate that the court must defer to the views of either party with respect to any ofthe interests, including national security, that may justify non-disclosure.[25] Section 70 must also be taken to envisage that, as under s 27, the claim muststate the grounds for non-disclosure with sufficient precision to permit evaluation andthe court may inspect the information if it thinks it necessary to evaluate the claim andundertake the balancing exercise. There is no room under s 70 for a presumption thatthe power to inspect will be sparingly exercised,17 but there may well be cases in whichthe court considers that the Crown claim is plainly well-founded, or the informationplainly unnecessary to the proceeding, and thus inspection would serve no purpose.15 See Brightwell v ACC, above n 12, at 157 per McMullin J; Green v Commissioner of InlandRevenue [1991] 3 NZLR 8 (HC) at 12 citing Sankey v Whitlam (1978) 142 CLR 1 at 96. See alsoChoudry (No 1), above n 12, at 596.16 Somerville v Scottish Ministers [2007] UKHL 44, [2007] 1 WLR 2734 at [155]−[156] and[203]−[204].17 Compare earlier authorities in which public interest immunity was claimed under s 27(1), notablyCorbett v Social Security Commission, above n 12, at 911 per North J and 917 per Cleary J; andEnvironmental Defence Society Inc v South Pacific Aluminium Ltd (No 2) [1981] 1 NZLR 153(CA) at 156. See also Balfour v Foreign and Commonwealth Office [1994] 1 WLR 681 (CA) at688.[26] The section is silent as to how the court is apprised of the relevant publicinterest in non-disclosure. It is implicit that the parties may adduce affidavit evidenceas they would on any interlocutory application.[27] The overarching public interest with which s 70 is concerned is harmconsequent upon disclosure. It follows that non-disclosure should not be orderedunder s 70 where the information that the State wishes to withhold is already inthe public domain. This too is a matter of evidence. We observe that information mayfind its way into the public domain in various ways. Information relating to mattersof State includes information for which protection is claimed under certain provisionsof the Official Information Act, which has its own disclosure and review processes.18[28] That bring us to the test under s 70, and in particular whether a national securityinterest (or other protected interest) trumps the public interest in disclosure. We beginby observing that s 27(3) of the Crown Proceedings Act is open to the interpretationthat a document should not be disclosed where disclosure would be likely to prejudicenational security or international relations. On that view of s 27, there is no room forthe type of balancing exercise contemplated by s 70, since the competing publicinterest in disclosure can never prevail in such a case. However, as we explainedabove, courts have always held that they may balance a protected interest innon-disclosure against the public interest in disclosure.[29] Section 70 confirms that. It requires that competing public interests bebalanced, indicating that there is no presumption for or against disclosure. Ex parteWiley is sometimes cited for the proposition that harm from disclosure must be"substantial" if it is to justify withholding information.19 We take that to signify thatthe countervailing public interest in disclosure is always given substantial weight inthe balancing exercise.[30] The authorities also indicate that the extent to which a court should be preparedto order disclosure depends on the subject matter of the claim to immunity, the natureand content of the information to be withheld, and the court's capacity to undertake a18 See Taylor Judicial Review, above n 11, at 9.32−9.33.19 Ex parte Wiley, above n 13, at 281.critical evaluation. Courts' lack of knowledge and expertise has frequently been citedin cases where national security or international relations are relied on to justifynon-disclosure.20 By contrast, courts have scrutinised closely claims to immunitybased on the efficient functioning of the police,21 the confidentiality of public serviceadvice to Ministers,22 or the proper functioning of the public service.23[31] The practice of not subjecting national security claims to close scrutiny issometime characterised as deference, but the courts may be saying only that they arein no position to evaluate such claims critically. That was the position in Choudry vAttorney-General.24 This Court delivered two judgments in that case. In the first itconfirmed that while New Zealand courts pay deference to a Ministerial certificatestating that disclosure will be contrary to the public interest, they are not bound by thatcertificate.25 The public interest in non-disclosure must be balanced against the publicinterest in the effective administration of justice, and the balancing is the court's task.26It may inspect documents for which public interest immunity is claimed.27 The Courtrecognised that the argument for deference is "particularly strong" where nationalsecurity is invoked.28 It nonetheless hesitated to defer to the Prime Ministerialcertificate for two reasons: a wide spectrum of interests may seek shelter under the"national security" umbrella, and the certificate in that case was insufficiently specificas to the reasons for non-disclosure.29 The Crown responded by filing an amendedPrime Ministerial certificate stating that both operational and substantive aspects ofnational security were involved and claiming that to disclose which particular aspect20 Choudry (No 2), above n 12, at [30]–[31]; The Church of Scientology Inc v Woodward (1982) 154CLR 25 at 74–76; Balfour v Foreign and Commonwealth Office, above n 17, at 686–687; andR (on the application of Mohamed) v Secretary of State for Foreign and Commonwealth Affairs[2009] EWHC 152, [2009] 1 WLR 2653 at [63]–[64].21 Konia v Morley, above n 14; Tipene v Apperley [1978] 1 NZLR 761 (CA); and Arias vMetropolitan Police Commissioner (1984) 128 SJ 784 (CA).22 Fletcher Timber Ltd v Attorney-General, above n 14.23 See Conway v Rimmer, above n 14; but compare Balfour v Foreign and Commonwealth Office,above n 17.24 Choudry (No 1), above n 12; and Choudry (No 2), above n 12.25 Choudry (No 1), above n 12, at 593.26 At 593.27 At 593 per Richardson P, Keith, Blanchard and Tipping JJ, but compare 598 and 599–600 perThomas J. It appears that at first instance Panckhurst J had inspected the documents: Choudry vAttorney-General HC Christchurch CP 15/98, 19 August 1998.28 Choudry (No 1), above n 12, 593.29 At 594.of security was involved would in itself reveal information protected by public interestimmunity.[32] In its second judgment the Court decided by majority that it would acceptthe new certificate and the documents need not be produced for inspection bythe trial judge.30 The Court deferred to the Prime Minister's claim that to give moredetail would itself breach national security:[30] Against this background we have grave difficulty in seeing howjudicial inspection could responsibly advance matters. A Judge looking atthe documents might conclude that on their face they were completelyinnocuous from the point of view of national security. But against that wouldstand the Prime Minister's certificate informing the Court that disclosurewould be contrary to national security. The issue in these terms is hardlyjusticiable. How would the Judge proceed? On one view, and an obviouslyincomplete view, disclosure should be ordered. On the other it should not.For the Judge to approach the Prime Minister seeking further information,without reference to Mr Choudry, would be contrary to principle andinappropriate. Being unable to proceed in that matter, there is no waythe Judge could properly go behind the certificate. The only satisfactoryanswer must be that the customary deference paid to and trust placed in sucha certificate as the present should prevail. The Court simply does not have theexpertise or the necessary information to say that the Prime Minister's viewof the matter stated in her further, more specific, certificate should not prevail.A certificate that to disclose more would reveal information it is the verypurpose of the claim to keep secret must be taken at face value. Ministers ofthe Crown giving such certificates as these bear a heavy responsibility toappraise themselves of the law and to give the issues arising careful,conscientious and independent consideration. They are accountable in theirown arena for the exercise of their powers. Inspection, against a certificate ofthe present kind, cannot lead to a satisfactory balancing of the competinginterests by the Court. It could only lead to some intuitive and superficial viewthat the document under consideration looked harmless enough. But againstthat it might be a crucial piece in the jigsaw. How could the Court's view insuch circumstances responsibly prevail over what the Court must take to bethe conscientious and informed view of the Prime Minister that to disclosemore would itself be contrary to national security?[31] In short the consideration of the competing interests must beundertaken at this stage in the present case on the premise that the Ministerhas acted responsibly and with justification in certifying that to disclose morewould itself jeopardise national security. The Prime Minister has said thatthe material withheld relates to an ongoing security concern. From this wewould infer that any potential legislative changes to the definition of nationalsecurity do not materially affect the present case. The information relates toboth substantive and operational issues, albeit disclosure in either area isobviously capable of being detrimental to national security. Editing has beenconsidered and is said to have been used wherever possible. While we30 Choudry (No 2), above n 12. The majority judgment was that of Richardson, Keith, Blanchardand Tipping JJ. Thomas J dissented.recognise that the law in New Zealand has developed in the direction ofgreater openness there comes a time when the words of Lord Reid in Conwayv Rimmer remain apposite: the Minister's reasons are of a character whichjudicial experience is not competent to weigh. Nor indeed is the judicialprocess able, responsibly, to go behind a ministerial certificate that to disclosemore would itself jeopardise national security.It will be seen that the majority concluded that the Court lacked the expertise ornecessary information to say that the Prime Minister was wrong. It is for that reasonthat the Court declined to inspect the documents itself and opted to defer tothe certificate.[33] We observe that the Court in Choudry was conducting a traditional publicinterest immunity process under s 27 of the Crown Proceedings Act.31 The Court didnot have the assistance of amicus or, it seems, evidence explaining what lay behindthe Prime Ministerial certificate. It considered that it would be inappropriate to askthe Prime Minister for more information.[34] A court is more obviously required, and better placed, to form its own viewunder s 70, under which the balancing exercise is the court's responsibility, the claimto immunity is supported by evidence, the court may insist on inspecting the materialthat the Crown wishes to withhold, and (as we explain below) the court may conducta closed court process if it thinks necessary. To illustrate the point that there isa relationship between the court's process and its capacity to subject a claim to criticalscrutiny, we refer to R (Mohamed) v Secretary of State for Foreign andCommonwealth Affairs (No 2).32 The question was whether paragraphs ought to beredacted from a judgment issued following a closed court proceeding in whichthe court had been able to examine claims that the UK Security Service had facilitatedwrongdoing against persons detained at Guantanamo Bay. In that case the Englandand Wales Court of Appeal examined in some detail claims that information pertainingto liaison with foreign intelligence services ought not be disclosed.31 The Choudry proceeding was commenced under s 4A of the New Zealand Security IntelligenceService Act 1969, which allowed the Minister and Director of Security to jointly issue adomestic intelligence warrant authorising interception of any communication or document.A ministerial certificate was issued pursuant to s 27 of the Crown Proceedings Act 1950.32 R (Mohamed) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2010] EWCACiv 65; [2011] QB 218.Jurisdiction to conduct a closed court process[35] There has been no dispute in this proceeding about a court's power to hold aclosed hearing under s 70, at which it considers information in the absence of a partyto whom that information has not been disclosed, for the purpose of deciding whetherdisclosure ought to be made. The processes used in the High Court and before us wereadopted by consent.[36] It has long been settled that when considering a claim to non-disclosure onpublic interest immunity grounds a court may examine the documents in the absenceof the other party. The traditional process was described by Lord Clarke SCJ inAl Rawi v Security Service:33145 the following principles correctly state the approach to PII [publicinterest immunity] as it has stood until now. (i) A claim for PII must besupported by a certificate signed by the appropriate minister relating tothe individual documents in question: Duncan v Cammell Laird [1942] AC624, 638 per Viscount Simon LC. (ii) Disclosure of documents which oughtotherwise to be disclosed under [Civil Procedure Rules] Pt 31 may only berefused if the court concludes that the public interest which demands thatthe evidence be withheld outweighs the public interest in the administrationof justice. (iii) In making that decision, the court may inspect the documents:Science Research Council v Nassé [1980] AC 1028, 1089−1090. This mustnecessarily be done in an ex parte process from which the party seekingdisclosure may properly be excluded. Otherwise the very purpose ofthe application for PII would be defeated (iv) In making its decision,the court should consider what safeguards may be imposed to permitthe disclosure of the material. These might include, for example, holding allor part of the hearing in camera; requiring express undertakings ofconfidentiality from those to whom documents are disclosed; restrictingthe number of copies of a document that could be taken, or the circumstancesin which documents could be inspected (e g requiring the claimant and hislegal team to attend at a particular location to read sensitive material); orrequiring the unique numbering of any copy of a sensitive document.(v) Even where a complete document cannot be disclosed it may be possibleto produce relevant extracts, or to summarise the relevant effect of thematerial: Ex p Wiley [1995] 1 AC 274, 306H−307B. (vi) If the public interestin withholding the evidence does not outweigh the public interest inthe administration of justice, the document must be disclosed unless the partywho has possession of the document concedes the issue to which it relates: seeSecretary of State for the Home Department v MB [2008] AC 440, para 51,per Lord Hoffmann.33 Al Rawi v Security Service [2011] UKSC 34, [2012] 1 AC 531.This process, which is essentially the same as was followed in Choudry, wastraditionally conducted on an "essentially ex parte"34 basis and justified on the basisthat to disclose the material to the other party for the disclosure hearing would be todefeat the claim to immunity.[37] In this case the application has been made under s 70 and the claim to immunityhas been founded on evidence rather than a Prime Ministerial certificate. We couldnot evaluate the claim without considering evidence from GCSB and hearing fromCrown counsel and amicus curiae in a hearing from which Mr Dotcom and his counselwere excluded. We consider that the power to do so is necessarily implicit in s 70.We also found it appropriate to inspect the information for which protection isclaimed.[38] However, we emphasise that this appeal is limited to the question ofnon-disclosure under s 70. The outcome could be full disclosure to Mr Dotcom, ordisclosure of summaries that he may use as he sees fit at trial, or a decision thatthe material may not be disclosed regardless of the impact it might have on the trial.A s 70 application is a discrete interlocutory process. That would remain so even if,as may happen from time to time, a document were to emerge and become the subjectof a s 70 application during the trial.[39] It is not necessarily correct that the High Court has jurisdiction to conduct whatwas described in Al Rawi as a "closed materials procedure" at the trial ofthe proceeding. A closed materials procedure means a procedure:35 in which (a) a party is permitted (i) to comply with his obligations fordisclosure of documents, and (ii) to rely on pleadings and/or written evidenceand/or oral evidence without disclosing such material to other parties if and tothe extent that disclosure to them would be contrary to the public interest (suchwithheld material being known as 'closed material'), and (b) disclosure ofsuch closed material is made to special advocates and, where appropriate,the court; and (c) the court must ensure that such closed material is notdisclosed to any other parties or to any other person, save where it is satisfiedthat such disclosure would not be contrary to the public interest. For thepurposes of this definition, disclosure is contrary to the public interest if it ismade contrary to the interests of national security, the international relations34 Al Rawi v Security Service [2010] EWCA Civ 482, [2012] 1 AC 531 at [40] per Lord Neuberger.35 At [2].of the United Kingdom, the detection and prevention of crime, or in any othercircumstances where disclosure is likely to harm the public interest.[40] It will be seen that a closed material procedure extends to a trial from whichthe non-Crown party is excluded and at which they are represented by a SpecialAdvocate. In such a process the non-Crown party may not see some of the witnessesor documents, or read some of the evidence or submissions, or know the judge's fullreasons for decision.[41] The High Court in the present case evidently envisaged that a closed materialsprocess would be conducted at trial in this case.36 Mr Grieve would representthe interests of Mr Dotcom, which might entail calling evidence and makingsubmissions that could not be shared with him. We understand that this would be doneby consent, should Mr Dotcom fail to win disclosure of the raw communications.In the absence of argument, we are not to be taken to agree that the High Court hasjurisdiction to conduct a closed materials process, either under inherent jurisdiction orby implication from the statutorily sourced powers of New Zealand courts underthe Evidence Act or the High Court Rules.[42] To explain our reservation about jurisdiction it suffices to mentionthe United Kingdom Supreme Court decision of Al Rawi.37 A majority held thata court does not have inherent jurisdiction to conduct a closed materials process, citingthe "basic rule" that a court "cannot exercise its power to regulate its own proceduresin such a way as will deny parties their fundamental common law right to participatein the proceedings in accordance with the common law principles of natural justiceand open justice".38 The Supreme Court reserved for another day the question whetherjurisdiction can be conferred by consent.39 The majority held that it should not beassumed that a traditional public interest immunity process is incapable of doingjustice.40 The minority held that the court might conduct a closed materials processwhere necessary to do justice, at least where the parties consent to it:4136 Judgment of Gilbert J, above n 4, at [63].37 Al Rawi v Security Service, above n 33.38 At [22] per Lord Dyson SCJ.39 At [46] per Lord Dyson, [99] per Lord Kerr, and [121] per Lord Mance SCJJ.40 At [41]−[49] per Lord Dyson SCJ.41 At [113] per Lord Mance SCJ.An inability to allow a voluntarily accepted closed material procedure, as analternative to striking a claim out as untriable, would be to deny somethingeven more basic, that is any access to justice at all.[43] We have not found it necessary to call for argument on the High Court'sjurisdiction to conduct a closed materials process at trial. That question can be left fora case in which a fair trial might depend on the trial court having access to materialthat cannot be disclosed to a party. As explained at [70] below, we have concludedthat in the circumstances of this case a fair trial can be held without access tothe disputed communications.The appointment of Mr Grieve as amicus and Special Advocate[44] Mr Grieve was initially appointed as an amicus curiae in the 2012 judicialreview proceeding by minute of 11 October 2012.42 Winkelmann J recorded that hisrole was to assist with the first phase of the enquiry into the extent to which relevantinformation ought properly to be withheld from the plaintiffs under s 70.43 Mr Grievewas to have access to all material. His first task was to advance such arguments forthe plaintiffs as could be made about the claim for non-disclosure. He was at libertyto meet with counsel for the plaintiffs to discuss the case, and any materials counselfor the plaintiffs might provide to him. The Judge declined to direct that Mr Grieveshould cease to engage with the plaintiffs' counsel once he had seen the material.44The Judge envisaged that once Mr Grieve had completed his task he would report toher. That report would, at least initially, be confidential to her. It was to record allmaterial to which Mr Grieve had had access, including submissions from counsel.[45] The damages claim before us was commenced on 30 April 2013, andthe discovery process was commenced afresh. GCSB acknowledged that discoverywould be more extensive than had been called for by the 2012 judicial reviewproceedings. A minute of 17 June 2013 recorded Mr Grieve's appointment as amicusin that proceeding, so he could continue his role as regards discovery and the claimfor non-disclosure.45 That role was, nevertheless, likely to be refined over time. If he42 Dotcom v Attorney-General HC Auckland CIV-2012-404-1928, 11 October 2012.43 At [6].44 At [8].45 Dotcom v Attorney-General HC Auckland CIV-2013-404-2168, 17 June 2013.had doubts about claimed non-disclosure, he was to file a confidential memorandumto the Court. A subsequent case management minute of 19 August recorded it wasagreed Mr Grieve would report to Winkelmann J by 16 September.46[46] Mr Grieve filed his first memorandum on 11 September 2013, styled"Memorandum of Special Advocate". He advised the Judge his task was moreextensive and complex than had been anticipated. He would not meetthe 16 September reporting date.[47] It would appear Mr Grieve was first referred to as Special Advocate by counselfor GCSB in a case management memorandum of 14 June 2013, prepared forthe 17 June conference. He was first referred to in that way by Winkelmann J in herminute of 19 August. That title was used by the Court and all parties in subsequentdocuments.[48] Following his memorandum on 11 September, Mr Grieve reported to the Courtfrom time to time. At his request the Court authorised him to engage an expert whocould assist him.47 Mr Grieve sought authority to do so because he was concernedabout his own lack of knowledge and understanding of how information gatheringsystems work.[49] Mr Grieve's appointment was made by consent originally. Mr Grieve workedcooperatively with the plaintiffs' then counsel and GCSB's counsel, Mr Boldt.He negotiated the disclosure of a body of material which GCSB had originally wantedto withhold, and he negotiated a summary of facts which could be disclosed tothe plaintiffs. In a minute of 25 September 2014 Winkelmann J recorded:48[5] There are two broad categories of information subject to claims ofconfidentiality — raw data collected, and other documents. Mr Grieve QC,as special advocate has been considering whether claims to confidentialityadvanced by GCSB in respect of both categories are justified. He has beenassisted by an independent expert in this. This issue has largely been workedthrough, but there are remaining a couple of areas that require Mr Grieve'sattention before he can finally report to the Court. Mr Grieve is then to filea report as to the validity of grounds upon which GCSB claim confidentiality.46 Dotcom v Attorney-General HC Auckland CIV-2013-404-2168, 19 August 2013.47 Dotcom v Attorney-General HC Auckland CIV-2013-404-2168, 2 October 2013.48 Dotcom v Attorney-General HC Auckland CIV-2013-404-2168, 25 September 2014.The next step is a determination pursuant [to] s 70 of the Evidence Act whetherthe public interest in the communication of that information being disclosedin the proceeding is outweighed by the public interest in withholding thecommunication of that information. Although the information received fromthe special advocate will be critical in making this determination that is notthe end of the matter. There is also the weighing exercise contemplated by s70. Mr Davison [plaintiffs' counsel] says that he wishes to make submissionsas to the principles to be applied. It is not possible to determine what formany hearing will need to take in connection with the s 70 issue, indeed,whether there will be a hearing, until I have received Mr Grieve's final report.Mr Grieve anticipates that he will be in a position to provide that report bymid-November 2014.[50] It became apparent, however, that the plaintiffs insisted on seeing the rawcommunications and GCSB insisted that they must be withheld. A hearing would berequired. Mr Dotcom appointed new counsel. Mr Grieve filed a memorandum on15 December 2014 in which he identified a conflict between his roles as SpecialAdvocate and amicus:11. Your Honour appointed me as Special Advocate to representthe plaintiffs' interests in relation to the classified material. I haveunderstood that role to require me to act for the plaintiffs as if I hadbeen privately retained; the role requiring me to advancethe plaintiffs' case in the limited context of the classified material.12. Upon reviewing the course of my involvement thus far, it seems to methat I have also acted on occasions as if I had been appointed asan amicus. Reporting to Your Honour as anticipated in paragraph [5]of your Minute is an example. For my part, I have no difficulty withcontinuing to act as I have done in the past, from time to time wearingslightly different hats. That has been done with the knowledge andconsent of the plaintiffs through their counsel and of course,the independent expert has been retained to advise both me andYour Honour.13. I mention this dichotomy because I anticipate that if the independentexpert's report, classified or otherwise, supports the seconddefendant's stance of resisting further disclosure, that report will beprovided to you but I may well want to advance argument that despitethat report, Your Honour should order that further additionaldisclosure should be made by the second defendant.[51] This was initially uncontroversial. The Court recorded that all parties agreedthat Mr Grieve might argue for more disclosure even if the independent expertsupported GCSB's position:4949 Dotcom v Attorney-General HC Auckland CIV-2013-404-2168, 16 December 2014.[6] At present we await Mr Grieve's report, as special advocate onthe second defendant's application. Mr Grieve says that he anticipates thatthe independent expert may well support the second defendant's approach tothe s 70 issue, but reserves the right to argue for a different conclusion.He points out that in conveying the independent expert's opinion in suchcircumstances, he may arguably be stepping out of his special advocate role,reporting to the Court, more in the role of the counsel assisting the Court.All counsel agree that they have no issue with Mr Grieve taking this approach.Indeed, it is the only feasible one, absent the appointment of another counselto fulfil the role of counsel assisting the Court. That is a step I am not preparedto contemplate at this point. Presently Mr Grieve awaits furthercommunication from the plaintiffs before issuing his initial report. They haveindicated that they wish Mr Grieve to seek further information from the seconddefendant, and are in the course of drafting a letter to the second defendant.Pending representation issues being sorted out this will not be able to beadvanced.[52] It became evident that Mr Grieve might be instructed by the plaintiffs tocross-examine GCSB witnesses at the s 70 hearing. In a memorandum of17 February 2015 he envisaged that his dual roles would cause difficulty, especially ifhe were to disclose the independent expert's report to the Court:5. It now appears clear that [Mr Dotcom] will proceed with at least a trialof the section 70 application which will involve the filing of affidavitsand the likelihood that witnesses will be required forcross-examination. Although I have indicated in previous memorandathe likely stance which may be adopted by the independent expert,what his final opinion might be in the wake of matters to be raised bythe plaintiffs in opposition to the second defendant's application is notknown to me.6. At any hearing of the section 70 application I anticipate beinginstructed by counsel for the plaintiffs to cross-examine witnesses tobe called by the second defendant — particularly expert witnesses.7. As I see it, as matters stand, this places me in some difficulty regardingmy obligations (and, more particularly, those of the independentexpert) to the plaintiffs, having regard to my principal role as SpecialAdvocate.8. The independent expert has thus far largely acted as my adviser,although he has given some limited assistance to Your Honour.The terms of paragraph [3](c) of Your Honour's latest Minute appearto infer that my confidential report to the Court will convey the adviceor opinion of the independent expert on issues relating tothe section 70 application. This puts clearly in issue the question ofthe nature of the expert's role. Is he my adviser or the Court's?With respect, my position is that he should be mine, which was whathe was originally intended to be.9. With regard to my position as Special Advocate, in my submission myability to continue to act for the plaintiffs in that role has not beencompromised by my earlier actions referred to in my ThirteenthMemorandum. Subject to the views of Your Honour and other counselI would propose to continue in that role.10. That may mean that Your Honour will want to consider appointingcounsel to assist you.[53] The Court responded by confirming that as Special Advocate Mr Grieve wasto represent the plaintiffs' interests.50 The independent expert was to serve as anadvisor to the Special Advocate on technical and classified matters rather than (as theindependent expert himself preferred) as the Court's expert.51 It was for the SpecialAdvocate to decide whether he wished to place any evidence from the independentexpert before the Court.[54] Mr Grieve subsequently decided he was unable to support the application bythe plaintiffs for leave to require GCSB's witnesses to attend for cross-examination;and further, that even if leave was granted, he did not intend to cross-examinethe witnesses in the closed hearing. He recorded in a memorandum for plaintiffs'counsel that he had reviewed all of the material filed on both sides and taken advicefrom the independent expert and was satisfied that there was no basis for challengingthe contentions made in the closed GCSB affidavits (which the plaintiffs' counsel hadnot seen).52 He cited his duty to the Court, stating that counsel should notcross-examine where there was no sound factual foundation for doing so and shouldnot waste the Court's time with cross-examination on irrelevant issues. He recordedthat GCSB's closed affidavits comprehensively addressed the various issues relevantto the s 70 application and supported the granting of the application.[55] In a minute dated 31 March 2017, Gilbert J, who had assumed responsibilityfor the proceeding, recorded that counsel for the plaintiffs had advised thatthe relationship between the plaintiffs and Mr Grieve had broken down irretrievably.53Counsel argued that Mr Grieve's position had become untenable because he refusedto carry out Mr Dotcom's instructions. The Court was invited to terminate MrGrieve's appointment and engage another Special Advocate, preferably from50 Dotcom v Attorney-General HC Auckland CIV-2013-404-2168, 18 March 2015 at [2].51 At [7].52 Attached to an affidavit sworn for purposes of the hearing before us.53 Dotcom v Attorney-General HC Auckland CIV-2013-404-2168, 31 March 2017.the United Kingdom. The Judge dismissed this application, reasoning that Mr Grieveremained willing and able to represent the plaintiffs' interests and was entitled to actas he had proposed. Mr Grieve was obliged to exercise professional skill andjudgement, consistent with his obligations not only to the plaintiffs but also tothe Court.[56] As he had foreshadowed, Mr Grieve did not cross-examine GCSB's witnessesin the closed hearing or tender evidence from the independent expert. Ultimately hedid not resist the GCSB application with respect to the disputed material.Jurisdiction to appoint a Special Advocate under s 70[57] Mr Dotcom did not argue that the High Court lacked jurisdiction to appointa Special Advocate, either for purposes of the s 70 application or at trial. As noted, heoriginally consented to Mr Grieve's appointment.[58] Three statutes provide for the appointment of a Special Advocate in connectionwith proceedings involving classified information. They are the ImmigrationAct 2009, the Telecommunications (Interception Capability and Security) Act 2013and the Health and Safety at Work Act 2015.54 None applies to this case. In eachstatute the Special Advocate represents a non-Crown party.55 The Advocate must bea lawyer who has an appropriate security clearance and suitable experience.56They may represent the non-Crown party throughout commencing proceedings,making submissions, questioning witnesses and assisting in settlement.57 They mustact in accordance with their duties as an officer of the High Court and must maintainthe confidentiality of all classified information that the court shares with them.58Having seen that information, the Special Advocate may not have contact withthe party they represent, except with the permission of the court.59 The Special54 Immigration Act 2009, ss 265 and 266; Telecommunications (Interception Capability andSecurity) Act 2013 [TICSA], ss 101 and 105; and Health and Safety at Work Act 2015 [HSWA],sch 4 cl 6.55 Immigration Act, s 263(1); TICSA, s 107(1); and HSWA, sch 4 cl 8(1).56 Immigration Act, s 264; TICSA s 105(3); and HSWA, sch 4 cl 6.57 Immigration Act, s 263(2); TICSA, s 107(2); and HSWA, sch 4 cl 8(2).58 Immigration Act, s 263(3); TICSA, s 107(3) and (4); and HSWA, sch 4 cls 8(3) and (4).59 Immigration Act, s 267: under this Act the Court or Tribunal also has the power to amendthe communications; TICSA, s 109; and HSWA, sch 4, cl 10.Advocate is exempted from liability to the non-Crown party under the Lawyers andConveyancers Act 2006.60[59] We note that it is implicit in these provisions that the Special Advocate hasauthority to decide what case to advance. That must be so, since the non-Crown partywill not see the relevant information and the Special Advocate cannot communicatewith the non-Crown party after the Special Advocate has seen that information.The trial must be conducted on that footing.61[60] The Evidence Act does not provide for Special Advocates, although the LawCommission recommended that there ought to be a general statutory regime providingfor them.62 Courts have nonetheless made appointments in the absence of expressstatutory powers. It was done in Zaoui v Attorney-General and in A v Minister ofInternal Affairs because the non-Crown party would otherwise have been denied useof classified material.63[61] There is reason to doubt whether a court's jurisdiction under s 70 extends tothe appointment of a Special Advocate, at least where the party who counsel is torepresent does not consent. In the Immigration Act Special Advocates can beappointed irrespective of the non-Crown party's wishes,64 but the immigration settingis one in which the State has assumed some responsibility for the interests ofthe non-Crown party. By contrast, the two other Acts which provide forthe appointment of Special Advocates require an application by the non-Crownparty,65 thus signalling it is their choice. In each case the legislation appears to assumethat the Special Advocate will conduct a proceeding brought under the legislation forthat party. We are presently concerned with disclosure for purposes of a civilproceeding, in which the non-Crown party is represented, or responsible for, their own60 Immigration Act, s 268; TICSA, s 110; and HSWA, sch 4 cl 11.61 For these reasons the Special Advocate's position is very different from that of standby counselappointed to assist a self-represented defendant in criminal proceedings: see Fahey v R [2017]NZCA 596, [2018] 2 NZLR 392.62 Law Commission The Crown in Court (NZLC R135, 2015) at ch 9.63 The appointment of two special advocates in Zaoui v Attorney-General [2004] 2 NZLR 339 (HC)was noted in Law Commission National Security Information in Proceedings (NZLC IP38, 2015)at [4.17]; A v Minister of Internal Affairs [2018] NZHC 1328, [2018] 3 NZLR 583; andA v Minister of Internal Affairs [2018] NZHC 2890.64 Immigration Act, s 265(7).65 TICSA, s 105(2); and HSWA, sch 4 cl 6(2).representation. It may be doubted whether the court could effectively exemptthe Special Advocate from disciplinary or civil liability to the person for whomthe Advocate was appointed to act. However, we expressly do not precludethe possibility that there are circumstances in which the interests of justice may requireappointment.66[62] If jurisdiction exists, it is exercisable only where necessary, which raisesthe question whether amicus curiae may be appointed instead. The Law Commissionsaw the role of Special Advocate as distinct from that of amicus curiae, who isappointed to assist the court.67 The Commission assumed that the role of amicus curiaeis neutral as between the parties. That is the traditional function, but a court may alsochoose to brief amicus to advance the case for the non-Crown party, so assistingthe court in that way and relieving counsel of the traditional duty to lend neutralassistance to the court itself.68 This practice minimises the risk that counsel will faceconflicts of duty and it may be all that is needed for a s 70 application. Whether anamicus appointment would also suffice for a closed materials trial is a question weneed not answer here.Did the Special Advocate process miscarry?[63] In points on appeal filed on 26 March 2019, Mr Mansfield complained thatMr Grieve adopted the position of the independent expert, who was not in factindependent, on the ultimate issue. That was an error because the expert must havebeen wrong; the affidavits filed by the plaintiffs showed that the capacity of GCSBand its partner agencies to intercept all forms of communication is widely known andunderstood. The Special Advocate was obliged to put the questions posed for him bycounsel for the plaintiffs and had a proper basis for doing so. In the result,66 We note that s 70 applies to all proceedings, which under the Evidence Act include criminalproceedings.67 Law Commission The Crown in Court, above n 62, at [9.4].68 This Court held that amicus may be appointed to act in a partisan way in R v McFarland [2007]NZCA 449 at [55]. In Fahey, above n 61, at [79]−[84] we discouraged the practice of appointingamicus to assist a self-represented defendant in criminal proceedings, holding that the roles ofstandby counsel and amicus ought to be separated. That was done to protect the rights to self-representation and to fair trial and to insist that court-appointed counsel should be given a clearbrief that avoids conflicts of duty that had begun to manifest themselves in trials. We reserved foranother day the question whether counsel could be appointed to conduct the case for a personcompetent to stand trial but not competent to present their defence without representation.Mr Dotcom's interests were effectively unrepresented in the closed portion ofthe High Court hearing.[64] In oral argument Mr Mansfield did not contend that Mr Grieve was strictlyobliged to follow Mr Dotcom's instructions. He recognised that counsel had somediscretion in that regard. But he did argue that Mr Grieve erred by concluding that itwould be irresponsible and pointless to resist GCSB application. The questionsMr Dotcom wanted to have put to the witness were entirely proper. Questioning mighthave established that the "tradecraft" GCSB wants to protect is in the public domain,such that (as noted at [27] above), its disclosure in litigation could not injure the publicinterest.[65] It will be apparent from what we have said above that Mr Grieve was notobliged to follow Mr Dotcom's instructions to question GCSB witnesses and opposethe application. Whether appointed as Special Advocate or amicus, his task was toascertain Mr Dotcom's wishes with respect to the disputed information but to pursuethem only to the extent he thought appropriate. That is an inevitable consequence ofhis inability to share the disputed information with Mr Dotcom. It follows thatthe hearing did not miscarry in the sense that Mr Grieve failed to follow Mr Dotcom'sinstructions. Mr Grieve did not need to cite his ethical duty not to waste the Court'stime. It sufficed that in his view there was no basis on which GCSB application couldproperly be resisted.[66] The remaining question, on which Mr Mansfield focused, is whetherMr Grieve erred in his conclusion that no purpose would be served by cross-examiningthe witness and opposing the application.[67] We answer that question in the negative. No purpose would have been servedby opposing the application on the ground proposed by Mr Dotcom. The premise onwhich this part of the appeal depends — that GCSB wants to protect tradecraft that isalready in the public domain — is incorrect. More than that it is not possible to saywithout disclosing information that, as we confirm below, ought not be disclosed inthis proceeding. The Special Advocate process therefore did not miscarry for thisreason either.Evaluating the competing public interests[68] We turn to the task of evaluating and balancing the competing public interestsin relation to disclosure of the raw communications. We will undertake the exerciseafresh, as Mr Mansfield invited us to do. Gilbert J considered that he was bound tohold, following this Court's judgment in 2013,69 that the raw communications werenot discoverable. This Court has since held that its judgment did not precludeMr Dotcom from arguing that they were discoverable in respect of this common lawdamages proceeding.70 The Judge's reasons remain relevant, however, because he didgo on to consider the merits of whether a non-disclosure order ought to be made unders 70.The public interest in disclosure[69] The raw communications are relevant, and that being so it is axiomatic thatthere is a public interest in them being disclosed to Mr Dotcom so he may put them touse in and for purposes of this proceeding. That public interest has two dimensions,as noted earlier. One is natural justice and the other is open justice. Proceedings takeplace in public so that parties can know and meet the case against them, and so thatpublic confidence in the impartial administration of justice is maintained.[70] That said, this is not a case in which the information must be disclosed if justiceis to be done at all. The claim will not fail, or be much affected, without the disputedinformation. The GCSB has admitted liability. What is in issue in this proceeding isthe quantum of damages for dignitary losses. These will be fixed as a matter ofimpression. The general nature of the disputed information is known to Mr Dotcom.In our opinion that would suffice. As it happens, summaries have been prepared withthe aid of Mr Grieve, and they can be used at trial. We are satisfied that they willpermit a fair trial in this case.[71] Mr Mansfield argued that there is a wider public interest in holding GCSB toaccount and this warrants disclosure of the raw communications, notwithstanding69 Judgment of Gilbert J, above n 4, at [35] referring to Attorney-General v Dotcom [2013] NZCA43, [2013] 2 NZLR 213.70 Dotcom v Attorney-General [2018] NZCA 220, [2018] NZAR 1298 at [38].the fact they might indirectly reveal GCSB's methodology and tradecraft. That, heargued, is already in the public domain. We do not accept that submission.Disclosure under s 70 is made, as with all discovery, for the purposes of the litigation.There is a public interest in holding GCSB accountable for unlawful conduct, butMr Dotcom has won judgment on liability and the (now former) Prime Minister hasapologised for GCSB's conduct. What remains is a private claim for damages.The public interest in non-disclosure[72] Having assessed the disputed communications, we find that GCSB's claim thatdisclosure would harm national security and international relations is well-founded.We are satisfied that the interest claimed exists and that disclosure would be likely toinjure it. More than that is not appropriate to say without risking the harm that s 70 isdesigned to prevent.The balancing exercise[73] We conclude, not by a small margin, that the balancing exercise favoursnon-disclosure. Gilbert J was correct to order, under s 70, that the disputedinformation not be disclosed in this proceeding.Decision[74] The appeal is dismissed.[75] Mr Dotcom must pay the respondent costs for a standard appeal on a band Bbasis with usual disbursements. We certify for second counsel.Solicitors:Anderson Creagh Lai Ltd, Auckland for AppellantCrown Law Office, Wellington for Respondent