KIM DOTCOM v HER MAJESTY’S ATTORNEY-GENERAL ON BEHALF OF THE GOVERNMENT COMMUNICATIONS SECURITY BUREAU [2020] NZSC 1

KIM DOTCOM v HER MAJESTY'S ATTORNEY-GENERAL ON BEHALF OF THE GOVERNMENTCOMMUNICATIONS SECURITY BUREAU [2020] NZSC 1 [3 February 2020]IN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUISC 103/2019[2020] NZSC 1BETWEEN KIM DOTCOMApplicantAND HER MAJESTY'S ATTORNEY-GENERALON BEHALF OF THE GOVERNMENTCOMMUNICATIONS SECURITYBUREAURespondentCourt: Glazebrook, Ellen France and Williams JJCounsel: R M Mansfield and S L Cogan for ApplicantD J Boldt for RespondentJudgment: 3 February 2020JUDGMENT OF THE COURTA The application for leave to appeal is dismissed.B The applicant must pay costs of $2,500 to the respondent.____________________________________________________________________REASONSIntroduction[1] The applicant, Mr Dotcom, brought civil proceedings for damages against therespondent, the Government Communications Security Bureau (GCSB), in relation tothe unlawful interception of Mr Dotcom's private communications by the GCSB. Inthe course of these proceedings, the High Court granted the GCSB's interlocutoryapplication that certain communications and information were not to be disclosed ordiscovered under s 70 of the Evidence Act 2006 on the basis that the communicationsrelated to matters of State and the public interest in this information being disclosedwas outweighed by the public interest in withholding it.1 Mr Dotcom appealedunsuccessfully to the Court of Appeal from that decision.2 He now seeks leave toappeal to this Court.Background[2] The interception of Mr Dotcom's private communications took place over theperiod from late 2011 to early 2012. The GCSB acted at the request of theNew Zealand Police, who were undertaking an operation to assist United Statesauthorities who have sought Mr Dotcom's extradition to the United States.Mr Dotcom was arrested on 20 January 2012. In the course of judicial reviewproceedings subsequently brought by Mr Dotcom, challenging his arrest and searchwarrants authorising police actions on 20 January 2012, it became apparent that theGCSB had acted unlawfully by intercepting the communications.3 Mr Dotcom thenbrought a civil claim seeking damages arising from the unlawful interception.Liability is admitted.4 The issue outstanding is fixing the damages payable.5 Thatissue has not yet been determined pending the discovery process.[3] In the course of the discovery process, the respondent refused to discover ordisclose certain information, comprising intercepted communications (the disputedinformation). The respondent sought an order for non-disclosure of this informationon the grounds it related to matters of State and should be withheld under s 70 of theEvidence Act. Mr Dotcom maintained the disputed information was relevant to theproceeding and it was in the public interest to disclose it.[4] Reflecting the security classification of parts of the GCSB's discovery, theHigh Court put in place a process designed to both safeguard legitimate nationalsecurity interests and avoid any prejudice to Mr Dotcom that might otherwise arise.In particular, Stuart Grieve QC was appointed as a Special Advocate. Mr Grieve, and1 Dotcom v Attorney-General [2017] NZHC 1621 (Gilbert J).2 Dotcom v Attorney-General [2019] NZCA 412, [2019] 3 NZLR 397 (Miller, Brown andClifford JJ) [CA judgment].3 The GCSB did not appreciate Mr Dotcom's resident-class visa precluded the surveillance.4 In December 2016, judgment was entered in Mr Dotcom's favour.5 The applicant says there are also issues as to the terms of declaratory relief. The respondentdisputes that noting that the declarations sought are pleaded in full in the second amendedstatement of claim.the independent expert appointed to assist him with technical issues, had access to thedisputed information. Ultimately, Mr Grieve was unable to resist the s 70 application,also declining to cross-examine the witnesses, and recording that the GCSB'saffidavits comprehensively dealt with the various issues.6[5] On appeal to the Court of Appeal, Mr Dotcom argued that the Special Advocateprocess had miscarried (essentially arguing that there was a lack of independence inthat process and that Mr Grieve had failed to cross-examine and oppose theapplication) and that the High Court erred in its application of s 70. In the Court ofAppeal, Colin Carruthers QC was appointed as counsel assisting in lieu of a SpecialAdvocate, with a brief to scrutinise the conduct of the Special Advocate, to the extenthe thought fit, and the non-disclosure orders in the High Court.[6] The Court of Appeal found that the Special Advocate process did not miscarry.It was sufficient that Mr Grieve had considered the material and decided there was nobasis on which to resist the GCSB's application.7[7] On the application of s 70, the Court of Appeal accepted the disputedinformation was relevant and so there was a public interest in disclosure. However,the Court did not consider that disclosure was necessary to ensure justice was done.The Court noted in this respect that the issue in the proceedings was the quantum ofdamages for loss of dignity. The Court also said that summaries had been prepared"with the aid of Mr Grieve" which could be used at trial and would "permit a fair trialin this case".8[8] In terms of the other side of the equation, having assessed the disputedinformation, the Court found that the GCSB's claim that disclosure would harmnational security and international relations was well-founded.9 The Court concludedthat the balancing exercise under s 70 accordingly favoured non-disclosure.6 The hearings in both the High Court and in the Court of Appeal were conducted on a partly-closedand partly-open basis.7 CA judgment, above n 2, at [65] and [67].8 At [70].9 At [72].The proposed appeal[9] Broadly, Mr Dotcom wishes to argue on the proposed appeal that the Court ofAppeal erred in failing to give due weight to the requirements of natural justice andopen justice including the public interest in the reasons for a judgment being madeavailable, and that the Special Advocate process miscarried. It is also said that it isimportant to establish the nature or extent of the unlawful infringement.[10] We are not satisfied that it is necessary in the interests of justice to hear theproposed appeal.10 While there may be questions arising about the scope andapplication of s 70 of the Evidence Act, the present case is not the appropriate case toconsider those issues. No question of principle arises. Rather, the matters theapplicant wishes to raise relate to whether natural justice was met in this particularcase and as to the weight given to the competing public interests on these facts.[11] Nor does anything raised by Mr Dotcom give rise to the appearance of amiscarriage of justice.11 Mr Dotcom's arguments would reprise matters all of whichhave been carefully examined in the Courts below and, as the Court of Appeal noted,the "general nature of the disputed information is known to Mr Dotcom".12 Inaddition, these issues would arise in a context where the respondent has been held toaccount having accepted liability and the central question is as to the level of damages.[12] The application for leave to appeal is accordingly dismissed. The applicantmust pay the respondent costs of $2,500.Solicitors:Anderson Creagh Lai Ltd, Auckland for ApplicantCrown Law Office, Wellington for Respondent10 Senior Courts Act 2016, s 74(4).11 Junior Farms v Hampton Securities Ltd (in liq) [2006] NZSC 60, (2006) 18 PRNZ 369.12 CA judgment, above n 2, at [70].