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Dotcom v GCSB: Estoppel ruling appeal allowed

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA512/2017 [2018] NZCA 220

BETWEEN

KIM DOTCOM

Appellant

AND

HER MAJESTY’S ATTORNEY-GENERAL ON BEHALF OF THE GOVERNMENT COMMUNICATIONS SECURITY BUREAU

Respondent

Hearing:

28 March 2018

Court:

Cooper, Asher and Clifford JJ

Counsel:

R M Mansfield and S L Cogan for Appellant D J Boldt and S L Graham for Respondent

Judgment:

27 June 2018 at 11 am

JUDGMENT OF THE COURT

A Mr Dotcom’s appeal against the High Court’s issue estoppel ruling is allowed.

B The parties are to liaise with the Registry to organise the hearing of the balance of the appeal.

C Costs are reserved and are to be dealt with at the end of that hearing.

REASONS OF THE COURT

(Given by Clifford J)

Introduction

[1] In 2013 the appellant, Kim Dotcom, commenced these proceedings against the Government Communications Security Bureau (the GCSB) and the police for damages for admittedly illegal surveillance and search activities those agencies had carried out. Issues as to discovery arose. The respondent discovered material obtained by the GCSB pursuant to unlawful surveillance activities which had been passed on to the police. The GCSB declined to discover the other material which had been obtained pursuant to unlawful intercepts but not provided to the police (the raw intercept material). It did so on the basis that previously this Court had, in a decision involving a similar application in related proceedings, determined the issue against Mr Dotcom. The GCSB agreed Mr Dotcom was therefore estopped from arguing that issue in these proceedings.

[2] That issue came before Gilbert J in the High Court. There, the GCSB argued that if an issue estoppel did not apply, then the raw intercept material was not discoverable in any event as it was not relevant. Furthermore, the GCSB relied on s 70 of the Evidence Act 2006 to oppose discovery if the Court ruled that the raw intercept material was discoverable as relevant.

[3] Gilbert J determined that an issue estoppel did arise. Even if that had not been the case, the Judge determined that the raw intercept material was not discoverable as it was irrelevant. Furthermore, the Judge granted the GCSB’s s 70 application as regards the raw intercept material and certain parts of the otherwise discoverable material (that is, the material provided to the police, which had been redacted by the police and the GCSB in the discovery process up to that point).

[4] Mr Dotcom appealed to this Court. That appeal was divided into two parts. First, Mr Dotcom’s challenge to the High Court’s issue estoppel decision was to be heard first. Then, and depending on the outcome of that appeal, the question of the appeals on the relevance and s 70 issues would be considered, if necessary.

[5] This judgment concerns the first of those matters: Mr Dotcom’s appeal against the decision of Gilbert J that he faced an issue estoppel on his application for discovery of the redacted source material.

[6] In arguing that aspect of his appeal, Mr Dotcom says his application for discovery against the GCSB in these proceedings raises different issues from those previously ruled on by this Court. Hence no issue estoppel arises.

[…]

SCDotcomvGCSB.pdf

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