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.
[…]