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Kim Dotcom v Her Majesty’s Attorney-General on behalf of the Government Communications Security Bureau [2019] NZCA 412

06 September 2019

Decision

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Summary

Appeal dismissed.

The  Government   Communications   Security   Bureau   ("GCSB")   unlawfully   intercepted Mr Dotcom's private communications at the request of the New Zealand Police, who were conducting an operation in aid of United States authorities who sought his extradition to face criminal charges in that jurisdiction. The intercepts continued for 10 days after Mr Dotcom's anest on 20 January 2012. The instant civil proceedings seeking damages for breach of privacy interests were severed from Mr Dotcom's 2012 judicial review proceeding once it became apparent the GCSB had acted unlawfully. At the GCSB's invitation, the High Court entered judgment against it. All that remains is to fix the damages payable.

Mr Dotcom appeals an interlocutory judgment of the High Court in which Gilbert J granted the GCSB's application under s 70 of the Evidence Act 2006 for an order that the intercepted communications not be disclosed in the proceeding for reasons of matters of State and that the public interest in the information being disclosed was outweighed by the public interest in withholding it. The GCSB claims that disclosure of the communications would adversely affect its operational activities and reveal or permit deduction of sources, method of collection, capacity, or capability.

During the hearing for the non-disclosure application, neither Mr Dotcom (or his co-plaintiffs) nor his counsel were permitted to see the disputed communications. Rather, it was disclosed to Mr Grieve QC who was appointed as a Special Advocate with the parties' consent. Mr Grieve's brief was ambiguous and evolved throughout proceedings. He negotiated disclosure of some of the material initially withheld. But after surveying the remaining material and taking advice from an independent expert, Mr Grieve found himself unable to resist the non-disclosure application. He refused to support the plaintiffs' application to cross-examine GCSB witnesses as he thought there was no basis to challenge the contentions made by the GCSB (in closed affidavits). Ultimately he did not resist the GCSB application with respect to the disputed material.

In this appeal, Mr Dotcom contends that the s 70 disclosure hearing in the High  Court miscanied because of the way in which the Special Advocate's role was constituted and performed there. He argues the s 70 balancing exercise must be done afresh by this Court.

Did the Special Advocate process miscarry in the High Court?

Held: No. Mr Grieve was initially appointed as amicus curiae by the High Court in the judicial review proceeding, but the role  evolved  over  time.  Mr  Grieve  was  not  obliged to follow  Mr Dotcom's instructions to question the GCSB witness and oppose the application. Whether appointed as Special Advocate or amicus, his task was to ascertain Mr Dotcom's wishes with respect to the disputed information but to pursue them only to the extent he thought appropriate. That is an inevitable  consequence  of  his  inability  to  share  the  disputed  information  with Mr Dotcom. He also did not err in his conclusion that no purpose would have been served by opposing the application to cross-examine on the grounds proposed. Mr Dotcom's premise, that the GCSB wants to protect tradecraft already in the public domain, is incorrect.

Does the public interest in non-disclosure of the raw communications outweigh the public interest in disclosure, pursuant to s 70 of the Evidence Act?

Held: Yes. The intercepted communications are relevant, and there is a public interest in them being disclosed so they may be put to use in and for purposes of this proceeding. Natural justice and open justice are the two dimensions to the public interest in favour of disclosure. That said, this is not a case in which the information must be disclosed if justice is to be done at all. The GCSB has admitted liability; what is in issue is the quantum of damages for dignitary losses. Summaries of information already disclosed will permit a fair trial in this case. The GCSB's claim that disclosure would harm national security and international relations is well-founded. The balancing exercise favours non-disclosure.