Full judgment: DotcomvDeputySG3615.pdf
[See also: Dotcom, co-accused get interim reprieve from asset seizure]

[1] As is tolerably well known, the United States government is presently seeking to extradite Kim Dotcom and Bram Van der Kolk, in order that they can be tried on a number of criminal charges in that country. The charges relate to their involvement in the allegedly unlawful activities of a number of companies, which are commonly and collectively referred to as the “Megaupload” group.

[2] Following the laying of charges against Messrs Dotcom and Van der Kolk in the United States, the United States government obtained restraining orders there over residential properties and personal assets owned by them in New Zealand. Pursuant to the Mutual Assistance in Criminal Matters Act 1992 (the MACMA) and the Criminal Proceeds (Recovery) Act 2009 (the CPRA), those restraining orders were registered in New Zealand in 2012, which meant they could be enforced here. [ Criminal Proceeds (Recovery) Act 2009, s 135. ]

[3] More recently, the United States has, in America, applied for, and been granted, civil forfeiture orders over those same assets (the US Forfeiture Order). Following a further request for mutual assistance the New Zealand Commissioner of Police (the Commissioner) has taken steps to have those orders, too, registered in this country. The effect of registration here would be that the assets would, within a relatively short space of time, vest absolutely in the Crown. [Section 144. ]

[4] The Commissioner is required to obtain the authorisation of the Attorney-General (or his delegate, in this case, the Deputy Solicitor-General (Criminal)) before applying to the Court for registration of the forfeiture orders. That authorisation was obtained on 9 April 2015 and the application for registration was then filed.

[5] By these present proceedings, Messrs Dotcom and Van der Kolk (the plaintiffs) seek judicial review of the Deputy Solicitor-General (Criminal)’s authorisation decision. They also seek interim orders to prevent the Commissioner from taking further steps to progress the registration application, pending resolution of the substantive review. In turn, the Commissioner has applied to strike out the judicial review proceedings.

[6] It is those two competing applications to which this judgment relates. Because interim orders would, self-evidently, not be available if the claim is struck out, it is the strike out application that will be addressed first.

[…]

Conclusion: strike out

[133] For all the reasons I have given I am unable to conclude that the any of the first, second, third, fourth and sixth causes of action are clearly untenable. The defendant’s application to strike out those claims is declined accordingly. The fifth cause of action I propose to leave for further consideration by the plaintiffs for the reasons I have just given.

Interim orders

[134] It is, I think, self evident from the above discussion that the plaintiffs have a substantial position to preserve and there will be very real consequences if it is not protected, pending final determination of the claim for review. If the provisional view I have formed about the unavailability of post-registration relief is correct, authorising the registration application to proceed now might deprive the plaintiffs of any ability to defend the extradition or to pursue their appeals against the forfeiture order in the United States. [I say “might” in recognition of the contingent right to be heard on the registration application itself.]

[135] I have little hesitation in concluding that interim relief should therefore be granted. Accordingly there will be a declaration that the Commissioner of Police is to take no further action that is consequent upon the decision by the Deputy Solicitor-General (Criminal) to authorise him to apply to register the foreign forfeiture orders made by Judge O’Grady in the District Court in Virginia on 27 March 2015 until further order of this Court.

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