I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE CIV [2017] NZHC Plaintiff

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1 IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE CIV [2017] NZHC 3158 UNDER the Judicial Review Procedure Act 2016, Part 30 of the High Court Rules and the New Zealand Bill of Rights Act 1990 IN THE MATTER BETWEEN AND of an application for judicial review KIM DOTCOM Plaintiff THE DISTRICT COURT AT NORTH SHORE First Defendant THE DEPUTY SOLICITOR-GENERAL (CRIMINAL) Second Defendant THE MINISTER OF JUSTICE Third Defendant THE UNITED STATES OF AMERICA Fourth Defendant THE DEPUTY SOLICITOR-GENERAL (CROWN LEGAL RISK) Fifth Defendant HER MAJESTYʼS ATTORNEY- GENERAL Sixth Defendant Hearing: 20 October 2017 Counsel: R M Mansfield and S L Cogan for Plaintiff K Raftery QC, M Ruffin, F Sinclair and A Richards for Fourth Defendant D J Boldt for Second, Third, Fifth and Sixth Defendants First Defendant abides Judgment: 15 December 2017 KIM DOTCOM v THE DISTRICT COURT AT NORTH SHORE [2017] NZHC 3158 [15 December 2017]

2 JUDGMENT OF BREWER J This judgment was delivered by me on 15 December 2017 at 3:00 pm pursuant to Rule 11.5 High Court Rules. Registrar/Deputy Registrar Introduction [1] The United States of America ( USA ) applies to strike out seven causes of action in the statement of claim filed by Mr Dotcom in this proceeding. The USA asserts they are an abuse of process being both collateral attacks on previous decisions of the Courts and an attempt to pre-empt Mr Dotcom s appeal from a decision of Gilbert J in this Court ( the High Court decision ). 1 Background [2] On 5 January 2012, the United States District Court for the Eastern District of Virginia issued an arrest warrant for Mr Dotcom on charges contained in an indictment issued the same day ( the original indictment ): (a) Count 1: Conspiracy to commit racketeering; (b) Count 2: Conspiracy to commit copyright infringement; (c) Count 3: Conspiracy to commit money laundering; (d) Count 4: Criminal copyright infringement by distributing a work on a computer network, and aiding and abetting criminal copyright infringement; and 1 Ortmann v United States of America [2017] NZHC 189 [High Court decision].

3 (e) Count 5: Criminal copyright infringement by electronic means, and aiding and abetting criminal copyright infringement. [3] Mr Dotcom was resident in New Zealand at the time. On 20 January 2012, Mr Dotcom was at his home in the Mahoenui Valley when the Police arrived with search warrants and an arrest warrant. They searched Mr Dotcom s home and seized, among other items, electronic devices such as computer hard drives and memory sticks. They arrested Mr Dotcom. [4] The search warrants and the arrest warrant were issued by the District Court following a legal process that began on 11 January 2012 with a formal request by the USA to the New Zealand Government for assistance for the purpose of extraditing Mr Dotcom to the USA to face criminal charges. 2 On 16 February 2012, the United States District Court for the Eastern District of Virginia issued a superseding arrest warrant based on a superseding indictment which amended the five counts in the original indictment by adding a further eight counts. [5] Ever since, Mr Dotcom has been opposing his extradition. A key issue for Mr Dotcom has been the validity of the search warrants. In 2014, the Supreme Court dismissed his appeal against findings in the Court of Appeal that the search warrants were valid ( the Supreme Court decision ). 3 [6] The Supreme Court decision meant that the extradition process could continue with a hearing in the District Court to determine whether Mr Dotcom is eligible for extradition. 4 The District Court, following a hearing that took three months, held that Mr Dotcom is eligible for extradition. 5 Mr Dotcom appealed that 2 The search warrants were issued under s 44(1) of the Mutual Assistance in Criminal Matters Act 1992 ( MACMA ), while the arrest warrant was issued under s 20(1) of the Extradition Act 1999 ( EA ). 3 Dotcom v Attorney-General [2014] NZSC 199, [2015] 1 NZLR 745 [Supreme Court decision]. 4 I am simplifying the record. The High Court decision, above n 1, at [3] recorded: By the time the eligibility hearing commenced, nine judgments had been delivered by this Court on issues arising out of the extradition proceedings, seven by the Court of Appeal and two by the Supreme Court (footnotes omitted). 5 United States of America v Ortmann DC North Shore CRI , 23 December 2015 at [701].

4 decision to this Court. The High Court decision, 6 on 20 February 2017, upheld the decision of the District Court. [7] Mr Dotcom has appealed the High Court decision. His appeal is scheduled for hearing in the Court of Appeal commencing 7 February [8] On 21 July 2017, Mr Dotcom opened a new front in his campaign to forestall his extradition by attacking the underpinnings of the extradition process. He commenced this proceeding and filed a statement of claim for judicial review. It contains eight causes of action. The first challenges the validity of the arrest warrant which was brought to Mr Dotcom s home by the Police on 20 January 2012, and by extension the validity of all steps taken in reliance upon it including the extradition proceeding itself. Accordingly, the relief sought includes orders that the extradition proceeding be quashed or set aside and that Mr Dotcom be discharged. [9] The second cause of action challenges another step in the early stages of the extradition process. Section 23(4)(a) of the Extradition Act 1999 ( the EA ) provided that once Mr Dotcom had been arrested, his extradition proceeding could not proceed until the Minister of Justice gave the District Court a notice in writing stating that a request for the surrender of Mr Dotcom had been transmitted to the Minister under s 18 of that Act. Mr Dotcom s assertion is that the request for his surrender received by the Minister did not comply with s 18 and hence the Minister s s 23(4)(a) notice was invalid. Again, Mr Dotcom seeks orders that the extradition proceeding be discontinued and that he be discharged. [10] The third cause of action goes back to the validity of the search warrants. It asserts that if the arrest warrant is invalid, then so too must be the search warrants. That is because the Supreme Court decision held that defects in the search warrants were cured in part by the information contained in the arrest warrant being conveyed to Mr Dotcom. 7 The orders sought include the quashing of the search warrants and the return of all property seized pursuant to them. 6 High Court decision, above n 1. 7 Supreme Court decision, above n 3, at [145]-[146].

5 [11] The fourth cause of action again attacks the validity of the search warrants. It alleges there was no extraditable offence made known to the New Zealand authorities, and so the authorities (in the person of the Attorney-General) should not have authorised the Police to apply for search warrants in the first place. Again, orders quashing the search warrants and returning all seized property are sought. [12] The fifth cause of action relates to the Attorney-General, acting on a request from the USA, authorising the Commissioner of Police to apply to register in the New Zealand Courts orders by an American Court restraining Mr Dotcom s New Zealand assets. Mr Dotcom asserts that the USA s request was invalid because there had not been identified an extraditable offence. Hence, all restraining orders granted pursuant to the Commissioner s applications are invalid and of no effect. Declarations to that effect are sought as relief. [13] The sixth cause of action seeks to impeach a failure or refusal by the Minister of Justice to exercise a discretion in Mr Dotcom s favour. Section 21(1) of the EA provides that the Minister must be told if a District Court Judge issues a provisional arrest warrant under s 20(1) of that Act (the arrest warrant for Mr Dotcom was such a warrant). The Minister then has the discretion to order that the related extradition proceedings be discontinued, 8 and the Minister may cancel the arrest warrant and order the person arrested to be discharged. 9 Mr Dotcom s case is that the Minister should have exercised her discretion in his favour and that her failure or refusal to do so was, for a number of reasons going to the proper exercise of a discretion, wrong. He seeks orders that the extradition proceeding be discontinued, the arrest warrant cancelled, and he be discharged. [14] The seventh cause of action is related to the second (that the Minister should not have issued a notice under s 23(4)(a) of the EA advising the District Court that she had received a request for the surrender of Mr Dotcom). Mr Dotcom alleges that because, as pleaded in the sixth cause of action, the Minister should have exercised her discretion under ss 21(3) and (4) of the EA in Mr Dotcom s favour, her issuing of 8 Section 21(3). 9 Section 21(4).

6 the s 23(4)(a) notice was an error of law. On this ground, orders are sought discontinuing the extradition proceeding and discharging Mr Dotcom. [15] The eighth cause of action is not subject to the USA s strike out application. 10 Overview [16] For clarity, I will briefly outline the extradition process. I adopt the Supreme Court s summary in Kim v Prison Manager, Mount Eden Corrections Facility: 11 [18] In summary, there are four distinct stages of decision-making in extradition proceedings under the Act. First, a person who is the subject of a request to surrender or a warrant for arrest in another country (in this instance on an individual request) may be arrested on a warrant issued by a Judge. Secondly, the arrested person must be brought before a court as soon as possible and may seek bail. If no application is made or bail is refused, the person is detained pending determination of the extradition proceedings. Thirdly, the District Court must determine whether the person is eligible for surrender in relation to the offence for which it is sought. Fourthly, if found to be eligible, the Minister must determine whether the person is to be surrendered and then make any consequential surrender orders. The Act is prescriptive as to which matters must be addressed at each stage. The substantive decisions on eligibility and surrender are made at the third and fourth stages. [17] Mr Dotcom s seven causes of action relate to the first stage of the extradition proceeding. The District Court Judge s decision to issue the provisional arrest warrant on 18 January 2012 underpins the majority of these causes of action. [18] In general terms, the USA advances two grounds for its strike out application. The first is that Mr Dotcom s pleadings, save for the eighth cause of action, disclose no reasonably arguable cause of action. [19] The second is that it is an abuse of process to commence judicial review proceedings that either expressly, or by necessary implication, collaterally attack the conclusion of eligibility, and thereby trespass upon the function of the appellate courts under the EA. 10 It relates to a decision by the Deputy Solicitor-General in June 2017 to direct that clones be made of the electronic devices seized from Mr Dotcom s homes and that they be sent to the USA. 11 Kim v Prison Manager, Mount Eden Corrections Facility [2012] NZSC 121, [2013] 2 NZLR 589.

7 Strike out applications [20] The High Court has the inherent power to strike out all or part of a pleading if it discloses no reasonably arguable cause of action. 12 [21] The principles 13 are well-settled: 14 (a) (b) (c) (d) (e) The pleaded facts (admitted or not) are assumed to be true; The cause of action or defence must be clearly untenable; The jurisdiction is to be exercised sparingly and only in clear cases; The jurisdiction is not excluded by the need to decide difficult questions of law that require extensive argument; The Court should be particularly slow to strike out a claim in any developing area of the law. [22] The Court also has the inherent power to strike out all or part of a pleading if to permit it to continue would be an abuse of the process of the Court. 15 Justice Richardson elaborated on the policy behind such a power: 16 Misuse of the judicial process tends to produce unfairness and to undermine confidence in the administration of justice In exercising that jurisdiction the Court is protecting its ability to function as a Court of law in the future as in the case before it. The public interest in the due administration of justice necessarily extends to ensuring that the Courts' processes are fairly used and that they do not lend themselves to oppression and injustice Such is the fundamental importance of the doctrine to the fair and proper administration of justice that Lord Diplock characterised the exercise of the power in appropriate cases as a duty rather than a discretion [23] In Air National Corporate Ltd v Aiveo Holdings Ltd, this Court summarised some policy considerations in relation to the exercise of the power: 17 (a) In general, the Courts should exercise their jurisdiction on matters properly brought before them. 12 High Court Rules, r 15.1(1)(a). 13 Attorney-General v Prince [1998] 1 NZLR 262 (CA) at 267. The Supreme Court endorsed these principles in Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [33]. 14 I note that these principles also apply to an application to strike out a judicial review proceeding: Southern Ocean Trawlers Ltd v Director-General of Agriculture and Fisheries [1993] 2 NZLR 53 (CA) at High Court Rules, r (d). 16 Reid v New Zealand Trotting Conference [1984] 1 NZLR 8 (CA) at Air National Corporate Ltd v Aiveo Holdings Ltd [2012] NZHC 602 at [31]; citing Williams v Spautz [1992] HCA 34, (1992) 174 CLR 509.

8 (b) (c) (d) It is important to preserve freedom of access to the Courts. The Courts need to be vigilant that abuse of process claims are not advanced other [than] in clear and appropriate cases, and are not brought for tactical reasons. Equally fundamentally, however, the Court should be alert to misuse of its processes, and be prepared to exercise its power to stay where the interests of justice demand it. [24] An abuse of process can take numerous forms. Justice Cull recently gave some examples: 18 [31] An abuse of process includes a proceeding brought for an improper purpose, a proceeding that attempts to relitigate matters that are already determined, and a proceeding brought where it is inevitable that a remedy will be refused even if one or more grounds of review are made out. (Citations omitted) [25] It is well-established, therefore, that to relitigate matters already determined, including bringing proceedings dressed in different garb but having the same effect, is an abuse of process. 19 In other words, the duplication of proceedings is an abuse of process, especially when a proceeding would pre-empt the decision of a superior court. 20 As Lord Halsbury explained: 21 I think it would be a scandal to the administration of justice if, the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceedings to set up the same case again. [26] It may still be an abuse of process to challenge an earlier determination of an issue even where the strict requirements necessary to establish the substantive defences of res judicata or issue estoppel cannot be made out. 22 As the Court of Appeal commented: Rabson v Judicial Conduct Commissioner [2016] NZHC Rabson v Judicial Conduct Commissioner, above n 18; Hunter v Chief Constable of the West Midlands Police [1982] AC 529 (HL); Collier v Butterworths of New Zealand Ltd (1997) 11 PRNZ 581 (HC) at Stevenson v Office of Police Commissioner [2015] NZHC 1408 at [11]; Walton v Gardiner [1993] HCA 77, (1993) 177 CLR 378 at Romanov v Attorney-General [2015] NZHC 1932 at [62]; citing Reichel v Magrath (1889) 14 App Cas 665 (HL) at Romanov v Attorney-General, above n 21, at [64]; Chamberlains v Lai [2006] NZSC 70, [2007] 2 NZLR 7 at [61]-[62]. 23 New Zealand Social Credit Political League Inc v O Brien [1984] 1 NZLR 84 (CA) at 95.

9 Estoppel per rem judicatam, issue estoppel, and abuse of process in at least one of its manifestations, may be seen as exemplifying similar concepts that a matter once determined may not be again litigated, that a matter which could and should have been raised in proceedings which have been determined should not be allowed to be raised subsequently, and that a collateral attack upon a final decision in other proceedings will not be permitted. The dual objects are finality of litigation and fair use of curial procedures [27] It is a matter of now determining on the facts whether these causes of action are reasonably arguable or, alternatively, whether the continuation of the present proceedings will constitute an abuse of process. 24 The enquiry for the latter is an open one or, as Lord Bingham phrased it, a broad, merits-based judgment. 25 The first cause of action: validity of the arrest warrant [28] As the USA did not issue a request for surrender before Mr Dotcom s arrest on 20 January 2012, it sought a provisional arrest warrant under s 20(1) of the EA. 26 [29] Section 20(1) of the EA provides (relevantly) that before issuing a provisional arrest warrant, the District Court Judge must be satisfied on the basis of the information presented to him or her that: (c) there are reasonable grounds to believe that the person is an extraditable person in relation to the extradition country and the offence for which the person is sought is an extradition offence [30] The Supreme Court has commented on the standard to which the Judge must be satisfied: 27 [23] the material before the Court must be sufficient to satisfy the Judge the criteria are met. In the case of the person being an extraditable person this is according to the standard of reasonable grounds to believe. There must be information which supports the Judge's belief, but the standard of reasonable belief is not high. It does not require information akin to evidence of an extent necessary in New Zealand to justify committal of an offender for trial. If the Judge is satisfied, the provisional warrant may and usually will be issued (Citations omitted) 24 Reid v New Zealand Trotting Conference, above n 16, at Johnson v Gore Wood & Co (a firm) [2002] 2 AC 1 (HL) at I note that, as per s 20(2), a warrant may be issued under the section even though no request for surrender has been made. If a request was made, the warrant would be issued under s Kim v Prison Manager, Mount Eden Corrections Facility, above n 11.

10 [31] To be an extraditable offence, the conduct charged must be conduct which, if it had occurred in New Zealand, would have constituted an offence in New Zealand punishable by not less than 12 months imprisonment. 28 [32] Mr Dotcom pleads that the material put before the District Court Judge in support of the application for the provisional arrest warrant could not found reasonable grounds for a belief that the offence for which Mr Dotcom is sought is an extradition offence. The material related the conduct of Mr Dotcom to the conduct required for an offence under s 131 of the Copyright Act 1994 ( the CA ). Specifically, Mr Dotcom pleads that the application s one sentence reference 29 to s 131 of the CA was insufficient because: (a) There was no reference to what an object is for the purposes of s 131; (b) There was no reference to which subsection of s 131 was relied upon (it covers several offences); (c) There was no discussion of whether any of the offences under s 131 apply to online communication of copyright infringing works; and (d) The safe harbour provisions 30 under the CA were not referred to. [33] The request to the District Court Judge was based on, and included, the original indictment. There were five counts in the indictment and, Mr Dotcom submits, all were said to relate to conduct which would amount to an offence in New Zealand under s 131 of the CA. 28 Extradition offence is defined in s 4(1) of the EA. There is more to it than I have said, but I am confining myself to the relevant aspects. 29 The memorandum in support of the application reads at paragraph [34]: The US copyright charges have a New Zealand equivalent in section 131 of the Copyright Act 1994 dealing with infringing objects which has a maximum penalty of five years imprisonment. This offence is deemed to be an extradition offence because it is punishable in both countries by more than four years imprisonment. 30 For example, s 92B provides internet service providers with a safe harbour from criminal liability for the conduct of their users in certain circumstances.

11 [34] However, the High Court decision held that the conduct alleged in count 2 (conspiracy to commit copyright infringement) is not an offence against s 131(1)(c), (d)(ii) or (d)(iii) of the CA: It follows that s 131 of the Copyright Act does not provide an available extradition pathway. 31 Mr Dotcom submits that because the High Court decision held that s 131 does not apply to digital infringement, the decision by the District Court Judge to issue the provisional arrest warrant was wrong because the Judge erred in deciding he was satisfied he had reasonable grounds to believe there was an extradition offence. [35] Mr Dotcom pleads that because of this error the provisional arrest warrant was invalid. He pleads also that the arrest warrant is invalid on two separate grounds: (a) The USA breached its duty of candour in not telling the District Court Judge more about the history and scope of the CA; and (b) The arrest warrant lapsed on 16 February 2012 because a superseding indictment was issued in the United States. Therefore, all steps taken after 16 February 2012 which were commenced in reliance on the arrest warrant are invalid. [36] Accordingly, all steps taken in reliance on the warrant, including the extradition proceeding itself, are invalid and of no effect. [37] Furthermore, Mr Dotcom contends that the first cause of action cannot amount to a collateral attack on the High Court decision, nor require prejudgement of the matters on appeal to the Court of Appeal, because the legal questions are different. The question before the High Court, and now the Court of Appeal, 32 is under s 24(2)(c) of the EA. It specifically concerns whether the offences relied upon are extradition offences. Whereas, this question concerns whether the District Court Judge, on the information before him at the time, had reasonable grounds to believe 31 High Court decision, above n 1, at [192]. 32 In Ortmann v United States of America [2017] NZHC 1809, Gilbert J granted leave to appeal at paragraph [49](a) on the question: Was the High Court Judge correct to find that the essential conduct with which the appellants are charged in each count constitutes an extradition offence for the purposes of s 24(2)(c) of the Extradition Act 1999?

12 the offence for which Mr Dotcom is sought, namely s 131 of the CA, is an extradition offence. [38] The USA, in response, submits there was no decision at the relevant time stating that s 131 of the CA did not apply to digital objects as opposed to tangible objects. In upholding the validity of a search warrant based on s 131(1)(c) which had targeted infringing yet intangible copies of an electronic computer programme, the Court of Appeal in Power Beat International Ltd v Attorney-General did not raise an issue as to whether s 131 even applied to digital or intangible objects. 33 The USA contends, therefore, that there was no reason for the Judge to think that s 131 might not cover the offending. [39] The USA also points out that the High Court decision has already determined, on appeal, that Mr Dotcom is eligible for extradition. Mr Dotcom has appealed the High Court decision to the Court of Appeal. Therefore, the first cause of action is an abuse of the process of the Court because: (a) The same questions of law, and prayers for relief, are before the Court of Appeal and its decisions bind this Court; and (b) It is a collateral attack on the High Court s determination as to Mr Dotcom s eligibility for extradition. [40] The USA submits also that the cause of action could not succeed as a matter of law in any event. That is because the District Court s jurisdiction to determine eligibility for extradition did not depend on the validity of the arrest warrant. Analysis [41] The Court of Appeal commented 34 in the context of an application for a search warrant under s 198(1) of the Summary Proceedings Act 1957: Power Beat International Ltd v Attorney-General [2000] 2 NZLR 288 (CA). 34 R v Williams [2007] NZCA 52, [2007] 3 NZLR 207. See also Asgedom v R [2016] NZCA 334 at [27]. 35 Section 198 has now been replaced by s 6 of the Search and Surveillance Act 2012.

13 [213] Belief means that there has to be an objective and credible basis for thinking that a search will turn up the item(s) named in the warrant [42] Like a search warrant, an arrest warrant is not to be granted lightly. The Judge must have had an objective and credible basis to believe that s 131 of the CA is an extradition offence. [43] I accept that Mr Dotcom s submissions are reasonably arguable. The District Court Judge had to satisfy himself that there was a legal basis to believe that s 131 of the CA is an extradition offence. Whether the Judge could have done so based on a one sentence reference to s 131 is arguable. [44] In this regard, whether or not s 131 was an extradition offence was for the District Court Judge to determine. Mr Dotcom can argue that the High Court decision was correct on this issue. However, Gilbert J s remarks in the High Court decision that s 131 does not provide an available extradition pathway would seem to be obiter dicta. But, if that is the law, then it was the law at the time of the decision to issue the arrest warrant. I agree with the remarks of Miller J: 36 [88] When Judges declare the law, they do so with retrospective effect: the law as declared by the judge is applicable not only at the date of the decision but at the date of the events which are the subject of the case before him, and of the events of other cases in pari materia which may thereafter come before the Courts. [89] This rule is derived from the declaratory theory of law, which holds that Judges merely discover and declare the law which was there all along, waiting to be revealed. Judges now acknowledge that they do make law, and that the declaratory theory of law is a fiction. But the rule that judgments state the law with retrospective effect remains. There have been rare cases in which Courts declined to apply the rule, or indicated that its effect might be limited as a matter of policy, but this is not one of them; in particular, it cannot be said that the Commission's Determination changed settled law in reliance upon which the parties had arranged their affairs. (Citations omitted) [45] Given the context of the application, and acknowledging Mr Dotcom s submissions outlined above, I accept there is a reasonably arguable case that the 36 Fonterra Co-Operative Group Ltd v The Grate Kiwi Cheese Co Ltd HC Wellington CIV , 3 March 2010; citing Kleinwort Benson Ltd v Lincoln City Council [1999] 2 AC 349 (HL) at 381 per Lord Goff.

14 District Court Judge did not have reasonable grounds to believe that the offence for which Mr Dotcom is sought is an extradition offence. [46] However, the first cause of action is clearly an abuse of the process of this Court. It seeks to focus attention on stage one of the extradition process, but that process has already been examined and determined to be valid. The Supreme Court decision upheld the validity of the search warrants, 37 the High Court decision confirmed the District Court s finding that Mr Dotcom is eligible for extradition, 38 and Mr Dotcom is now appealing the High Court decision to the Court of Appeal. [47] Mr Dotcom could have argued the validity of the arrest warrant before. For Mr Dotcom to now attempt to go back to the beginning of the process, namely stage one, and allege another procedural irregularity is abusive. Mr Dotcom has already pleaded before the High Court that the USA breached its duty of candour by misleading the District Court Judge when obtaining the provisional arrest warrant. The High Court decision found there was no breach. 39 Mr Dotcom now raises the same breach, but on different grounds, when there is no reason why he could not have done so earlier. In this regard, if Gilbert J s finding that s 131 is not an extradition offence is correct, then that was the law when Mr Dotcom made his challenge to the process used at stage one. Mr Dotcom could have challenged the arrest warrant on that ground. [48] If Mr Dotcom is right, then the District Court and the High Court decision might have erred although the point was not taken before either. Mr Dotcom might be able to attract the attention of the Court of Appeal to the points behind the first cause of action, but it is not a matter for this Court. [49] In the words of Lord Halsbury, Mr Dotcom is attempting to set up the same case again by changing the form of the proceedings. That cannot be allowed. The first cause of action is struck out as an abuse of process. 37 Supreme Court decision, above n 3, at [145]-[146]. 38 High Court decision, above n 1, at [593]. 39 High Court decision, above n 1, at [396], [408]-[409], [416].

15 The second cause of action: invalid notice under s 23(4)(a) of the EA [50] This cause of action is also an attack on the process which led eventually to the High Court decision that Mr Dotcom is eligible for extradition. [51] Section 23(4)(a) of the EA provides that since Mr Dotcom had been arrested on a provisional arrest warrant, the proceedings in the District Court for his extradition could not proceed until the Court received from the Minister of Justice a written notice stating that a request for Mr Dotcom s surrender had been transmitted to the Minister under s 18 of the EA. [52] Section 18(3) of the EA states that the request must be accompanied by duly authenticated supporting documents. Section 18(4) then sets out what supporting documents must accompany the request, including the arrest warrant issued in the extradition country. 40 [53] In this case, the United States arrest warrant, which had been part of the materials put before the District Court Judge who issued the provisional arrest warrant, had been superseded by another United States arrest warrant. It was the superseding arrest warrant which, pursuant to s 18 of the EA, was part of the request for surrender of Mr Dotcom transmitted to the Minister. [54] Mr Dotcom pleads that the United States arrest warrant which was before the District Court Judge should have been in the request to the Minister, not the superseding one. Therefore, s 18 had not been complied with, the Minister s notice to the District Court Judge under s 23(4)(a) was invalid, and hence the extradition processes are invalid Section 18(4)(a). 41 I note there was also a suggestion on the part of Mr Dotcom that there was a breach of Article XI of the treaty on extradition between New Zealand and the United States of America, which provides: A person arrested upon such an application shall be set at liberty upon the expiration of 45 days from the date of his arrest if a request for his extradition accompanied by the documents specified in Article X shall not have been received. But a formal request from the USA for surrender was received on 1 March 2012, which was within the 45-day timeframe.

16 Analysis [55] This issue comes down to the question: which arrest warrant should have been attached to the request, the original warrant or the superseding warrant? [56] The gist of Mr Dotcom s argument is that the original warrant did not contain an extradition offence. The USA cannot validate an invalid process by using a superseding warrant, which does contain extraditable offences, when that warrant was not before the District Court Judge. [57] I accept, again, there is a reasonably arguable cause of action. This is a matter of statutory interpretation. Mr Dotcom s preferred interpretation is arguable. [58] Nevertheless, I find the second cause of action to be an abuse of the process of this Court. This argument was not put before the High Court, but it could have been. It is a collateral attack on the High Court decision to now raise it under the guise of judicial review. Again, if there is an argument that justice has miscarried because the point was not made before the High Court, then Mr Dotcom can attempt to have it considered by the Court of Appeal. [59] The second cause of action is struck out for abuse of process. The third cause of action: invalid search warrants [60] The Supreme Court decision held the search warrants to be valid. 42 The Supreme Court did so, notwithstanding defects in the warrants, because the arrest warrant contained information which helped make up for the deficiencies. [61] Mr Dotcom pleads that if the arrest warrant should not have been issued, then it should not have been present to bolster the defective search warrants. If the Supreme Court had known that an invalid arrest warrant was used, it would have held the search warrants to be invalid and their use a miscarriage of justice. 42 Supreme Court decision, above n 3, at [145]-[146].

17 Analysis [62] I strike out this cause of action on the basis that it discloses no reasonably arguable cause of action. The Supreme Court decision held the search warrants to be valid because their procedural deficiencies did not result in a miscarriage of justice. 43 There was no significant prejudice to Mr Dotcom because he was given all the information he needed (or had it explained to him). Regardless of the validity of the arrest warrant, Mr Dotcom was still supplied with that information. [63] If I am wrong, I would also strike out this cause of action for abuse of process. This cause of action is a collateral attack on the Supreme Court decision. A substantive determination has been made on the validity of the search warrants. Mr Dotcom cannot now start again and make another challenge because he has found another argument. The fourth cause of action: invalid search warrants [64] The Mutual Assistance in Criminal Matters Act 1992 ( MACMA ) prescribes, among other things, how the request for the provisional search warrant is to be made. This cause of action pleads that the search warrants were invalid because they were not validly authorised under the MACMA. [65] On 17 January 2012, the Attorney-General authorised Detective Sergeant McMorran to apply to the District Court for a search warrant in accordance with ss 43(2) and 44(1) of the MACMA. The authorisation stated: In my opinion nothing in the [MACMA] precludes the granting of this request. [66] It is pleaded, as a consequence, that the Attorney-General who decided whether to grant the search warrant authorisation was in error to do so. Specifically, that Detective Sergeant McMorran was not validly authorised under s 43(2) of the MACMA to make the search warrant application. [67] Section 27(2) of the MACMA provides: 43 For the purposes of s 204 of the Summary Proceedings Act 1957.

18 Subject to subsections (3) and (4), a request by a foreign country for assistance under this Part may be refused if, in the opinion of the Attorney- General, (a) the request relates to the prosecution or punishment of a person in respect of conduct that, if it had occurred in New Zealand, would not have constituted an offence against New Zealand law; or (h) the request does not comply with the requirements of section 26. [68] Mr Dotcom pleads that the Attorney-General either failed to have regard to s 27(2)(a) or, to the extent that he had regard to it, he erred in finding that s 27(2)(a) did or did not apply. He also failed to have regard to s 27(2)(h). [69] In terms of s 27(2)(a), that is because (as it is pleaded) the request related to the prosecution of Mr Dotcom under the original indictment for conduct that, if it had occurred in New Zealand, would not have constituted an offence against New Zealand law (i.e. s 131 of the CA). [70] While, in terms of s 27(2)(h), Mr Dotcom pleads that the United States request for surrender did not comply with s 26 in several ways: (a) It did not specify whether the foreign country was requesting in its capacity as a prescribed foreign country, or a convention country, or a foreign country (other than a prescribed foreign country or a convention country); 44 (b) It did not state the convention under which the request was made; 45 and (c) It was not accompanied by a certificate from the Central Authority of the foreign country that the request was made in respect of a criminal investigation or criminal proceedings within the meaning of the MACMA Section 26(ba)(i)-(iii). 45 Section 26(bb). 46 Section 26(c)(i).

19 [71] It is pleaded, therefore, that the search warrant authorisation was invalid and accordingly the search warrants were invalid. Analysis [72] I strike out this cause of action on the basis that it discloses no reasonably arguable cause of action. Regarding s 27(2)(h), I note that s 27(5) states that the Attorney-General may grant a request even though the request does not comply with the requirements of s 26. [73] In terms of s 27(2)(a), the enquiry is not whether there was an extradition offence. It is whether the request related to the prosecution of a person in respect of conduct that, if it had occurred in New Zealand, would not have constituted an offence against New Zealand law. Here, there was no reason for the Attorney- General to think that a New Zealand offence had not been committed. The request alleged breaches of s 131 of the CA, which is expressed as an offence against New Zealand law. [74] In any event, this is a collateral attack on the Supreme Court decision that the search warrants are valid. Mr Dotcom pleaded in that case that the search warrants were invalid due to a lack of compliance with s 45 of the MACMA. 47 He is now challenging their validity under ss of the same legislation. There is no reason why he could not have done so earlier. He is, yet again, attempting to raise new grounds of argument in relation to issues that have already been determined. [75] The High Court decision held that Mr Dotcom is sought for offences under New Zealand law. It has been held that the process by which the District Court determined Mr Dotcom s eligibility for extradition was lawful. The point raised in the fourth cause of action was not argued either in the District Court or before the High Court and it is now too late to attempt, under the guise of judicial review, to start again the impeachment of the process. If there is any merit in the argument, Mr Dotcom may attempt to interest the Court of Appeal in it. 47 As one example, the Supreme Court decision, above n 3, at [88] accepted that the warrants were not in the form prescribed by the Mutual Assistance in Criminal Matters Regulations 1993, as required by s 45(1) of the MACMA. I note for completeness that s 45 was repealed on 1 October 2012 by s 335(5) of the Search and Surveillance Act 2012.

20 [76] I would also strike out the fourth cause of action for abuse of process. The fifth cause of action: invalid restraining orders [77] This cause of action, for the same reasons as pleaded in the fourth cause of action, attacks the authorisation by the Attorney-General to the Commissioner of Police to apply for interim restraining orders. It is pleaded that the Attorney-General acted under an error of law and/or unreasonably in declining to refuse the United States request for assistance to obtain interim restraining orders and to register them. [78] Counsel for the United States submits that the cause of action is an abuse of process because the restraining orders in question lapsed in 2015, after the Court of Appeal ordered an extension to their maximum duration of three years. 48 Analysis [79] I find that the cause of action is an abuse of process because, regardless of the purpose for which relief is sought, the pleading disputes a process which has already been adjudicated. It is at least a collateral attack on the Court of Appeal decision. 49 [80] The fifth cause of action is struck out for abuse of process. The sixth cause of action: failure to cancel arrest warrant [81] This cause of action relates to an involvement of the then Minister of Justice under s 21 of the EA. [82] The Minister was required under ss 21(3) and (4) to determine whether the proceedings against Mr Dotcom should be discontinued and whether to cancel the arrest warrant and order his discharge. The pleading is that the Minister, in effect, rubberstamped the recommendation made by the Ministry that she should do neither of those things. 48 Commissioner of Police v Dotcom [2014] NZCA 408 at [80]. 49 Commissioner of Police v Dotcom, above n 48.

21 [83] The basis for the pleading is that the advice to the Minister relied on the decision of the District Court Judge to issue the provisional arrest warrant. Mr Dotcom continues to rely on his assertion that the arrest warrant was invalid for the reasons already discussed in the previous causes of action. [84] In essence, Mr Dotcom submits that the Minister improperly exercised her discretion under ss 21(3) and (4). This must be a discretion which is actually exercised by the Minister. But Mr Dotcom contends that she simply adopted the Judge s decision to issue the provisional arrest warrant she made her decision on the same day she received the report from the Ministry. This contravenes the purpose of s 21 as a safeguard. [85] Mr Dotcom pleads further that there is evidence of bias or predetermination on the part of the Minister. He relies on a statement the Minister made in Parliament on 18 March He submits that a reasonable and informed observer would conclude that she was not impartial when considering under ss 21(3) and (4) whether to exercise her discretion. Analysis [86] I strike out this cause of action on the basis that it discloses no reasonably arguable cause of action. [87] There is no evidence that the Minister improperly exercised her discretion under ss 21(3) and (4). She received advice in the form of a report from the Ministry and she acted on it. [88] Further, s 11 of the Parliamentary Privilege Act 2014 prevents the statements from being relied on in court proceedings. [89] In any event, I regard this cause of action as an abuse of process. I agree with the submissions of counsel for the United States: 50 (18 March 2015) 704 NZPD The Minister said: they do not like it when we tell them the truth about their filthy little friend Nicky Hager and their big mate Kim Dotcom someone who I hope one day will quickly be extradited. He can have his day in court, which he apparently wants to have. Would that not be great?

22 72. The plaintiff seeks orders discontinuing the extradition and discharging him. This is a collateral attack on a substantive decision in a criminal proceeding and this Court s determination that the plaintiff is eligible. It would have this Court prejudge any conclusion by the Court of Appeal on the eligibility of the plaintiff and the relief to be granted, if any. [90] Mr Dotcom could have made his argument earlier. He did not. I would also strike out the sixth cause of action for abuse of process. The seventh cause of action: failure to cancel arrest warrant, discontinue proceeding and discharge Mr Dotcom [91] On the same basis as pleaded in the sixth cause of action, Mr Dotcom pleads that the Minister erred in law in issuing the Minister s notice under s 23(4)(a) of the EA. For the same reasons given for the sixth cause of action, I strike out the seventh cause of action as disclosing no reasonably arguable cause of action, and I would also strike it out for abuse of process. Result [92] I have granted the USA s application to strike out causes of action 1 to 7 of the statement of claim for judicial review dated 21 July The proceeding is now live only in relation to the eighth cause of action. I direct that the proceeding be listed for mention in relation to the eighth cause of action in the duty list at 10:00 am on 7 February Costs [93] Costs should follow the event. I will receive memoranda from parties seeking costs until 10:00 am on 16 February Mr Dotcom may reply by 2 March Brewer J Solicitors: Anderson Creagh Lai (Auckland) for Plaintiff Crown Law (Wellington)