KIM Dotcom v HM Attorney-General on behalf of the Government Communications Security Bureau

• Jurisdiction: New Zealand
• Judge: Miller J
• Judgment Date: 06 September 2019
• Neutral Citation: [2019] NZCA 412
• Court: Court of Appeal
• Docket Number: CA512/2017
• Date: 06 September 2019

Between

KIM Dotcom

Appellant

and

Her Majesty's Attorney-General on behalf of the Government Communications Security Bureau

Respondent

[2019] NZCA 412

Court:

Miller, Brown and Clifford JJ

CA512/2017

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

Bill of Rights, Tort — discovery — whether certain information, comprising intercepted communications should be disclosed in damages proceeding for unlawful interception of private communications — s70 Evidence Act 2006 (discretion as to matters of State) — s27 Crown Proceedings Act 1950 (discovery)

Counsel:

R M Mansfield and S L Cogan for Appellant

D J Boldt and K L Kensington for Respondent

C R Carruthers QC as amicus curiae

• A The appeal is dismissed.

• B Mr Dotcom must pay the respondent costs for a standard appeal on a band B basis with usual disbursements. We certify for second counsel.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Miller J)

Table of Contents

Introduction	[1]
Process for handling the disputed information in this Court	[7]
Mr Dotcom's claim and GCSB's defence	[8]
The general nature of the disputed information	[11]
The State's claim to immunity from disclosure	[12]
The nature of the claimed national security interest	[12]
No Prime Ministerial certificate as to national security risk	[14]
National security invoked under s 70 Evidence Act instead	[19]
The relationship between s 70 and s 27	[21]
The decision required of a court under s 70	[23]
Jurisdiction to conduct a closed court process	[35]
The appointment of Mr Grieve as amicus and Special Advocate	[44]
Jurisdiction to appoint a Special Advocate under s 70	[57]
Did the Special Advocate process miscarry?	[63]
Evaluating the competing public interests	[68]
The public interest in disclosure	[69]
The public interest in non-disclosure	[72]
The balancing exercise	[73]
Decision	[74]

Introduction

1 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 have sought his extradition to face criminal charges in that jurisdiction. The intercepts began on or about 16 December 2011 and concluded some 10 days after Mr Dotcom was arrested on 20 January 2012. Later that year Mr Dotcom commenced judicial review proceedings challenging the lawfulness of his arrest, and the search warrants authorising the police actions on 20 January.

2 In the course of the 2012 judicial review proceedings, it became apparent that GCSB had acted unlawfully in intercepting Mr Dotcom's communications. GCSB had failed to appreciate that Mr Dotcom's resident-class visa precluded its surveillance. 1

3 Thereafter Mr Dotcom commenced these civil proceedings in which he seeks damages for that breach of his privacy interests. 2 GCSB has admitted liability. At GCSB's invitation, the High Court has entered judgment against it. 3 All that remains is to fix the damages payable.

4 The present appeal is brought against an interlocutory judgment of the High Court in Mr Dotcom's damages claim. 4 Gilbert J granted GCSB's application for an order that certain information, comprising intercepted communications, not be disclosed in the proceeding on the ground, as relevant here, that it related to matters of State and the public interest in the information being disclosed was outweighed by the public interest in withholding it.

5 Mr Dotcom was represented at the High Court disclosure hearing (under s 70 of the Evidence Act 2006), but under a process in which neither he nor his counsel were permitted to see information that GCSB wanted to keep secret. Rather, it was disclosed to a Special Advocate, Stuart Grieve QC, who was originally appointed by the Court with the parties' approval. His brief from the Court was ambiguous, with consequences we will need to examine, but it undoubtedly extended to advancing arguments available to Mr Dotcom. Mr Grieve negotiated the disclosure of some material that GCSB had initially withheld. Other material was made the subject of summaries agreed between Mr Grieve and Crown counsel. Mr Grieve took advice from an independent expert about GCSB's claim that the balance, which we will call the disputed information, ought not be disclosed in this proceeding for national security reasons. Ultimately Mr Grieve found himself unable to resist the GCSB application with respect to that information. Shortly before the s 70 hearing Mr Dotcom changed his own counsel, instructing Mr Mansfield and Mr Cogan, and sought to have Mr Grieve dismissed. Gilbert J declined that request. 5

6 Mr Dotcom says that the s 70 hearing in the High Court miscarried because of the way in which the Special Advocate's role was constituted and performed there. He asks us to consider whether there is any public interest in withholding the disputed information, and if so to balance afresh the public interests for and against disclosure.

Process for handling the disputed information in this Court

7 We needed to view the disputed information and hear argument about the precise nature of the State interest in its non-disclosure, and these matters had to be kept from Mr Dotcom and his counsel pending judgment on the merits of the appeal. Counsel agreed that we should appoint amicus curiae in lieu of a Special Advocate. 6 Mr Carruthers QC had appropriate security clearances. His brief was to assist the Court by scrutinising and, to the extent he thought fit, criticising the conduct of the Special Advocate and the non-disclosure orders made under s 70 of the Evidence Act in the High Court. 7 We viewed the material and heard classified submissions about it from Mr Carruthers and Crown counsel in a closed hearing held on 1 May 2019. 8 We convened in open Court the following day to hear unclassified submissions from all counsel.

Mr Dotcom's claim and GCSB's defence

8 The damages claim is brought for unlawful and unreasonable interception of private communications, for breach of a duty of care owed to persons lawfully in New Zealand to take reasonable care in the use of interception technology, and for breach of privacy. 9 It is said that GCSB intercepted private communications without taking care to check its power to do so, that it continued the interception for 10 days after the purported justification (the police operation targeting Mr Dotcom) ended, and that it tried, and is still trying, to conceal the extent of its unlawful conduct. Its behaviour is said to have been high-handed and oppressive. Mr Dotcom is said to have experienced loss of dignity, anxiety, humiliation and embarrassment from the invasion of his family and private life.

9 The relief claimed comprises declarations that GCSB's conduct was unlawful, and public law compensation or damages including aggravated and exemplary damages. The amount sought has not been specified pending completion of discovery. Indemnity costs are also sought.

10 As noted, GCSB has admitted liability. The declarations sought have been granted. However, GCSB does not accept that the surveillance was as extensive as Mr Dotcom claims and it says that any continued interception after 20 January 2012 was inadvertent. It denies that its conduct was high-handed or contumelious. It has put Mr Dotcom to proof of the dignitary losses he claims to have suffered.

The general nature of the disputed information

11 The information that is relevant to the damages claim and which GCSB wishes to withhold mostly comprises private communications involving Mr Dotcom and others who were also the subject of the police investigation. These counsel described as “raw communications”. Some are personal in nature. There are also reports prepared by GCSB for the Police that quote or discuss raw communications.

The State's claim to immunity from disclosure

The nature of the claimed national security interest

12 It is accepted that no national security interest attaches to the information contained in the raw communications. GCSB claims rather that disclosure would adversely affect its operational activities and reveal or permit deduction of sources, method of collection, capacity, or capability. A senior GCSB official (name redacted) has deposed that in their opinion release of the redacted material would cause irreparable prejudice to the security of GCSB personnel, damage to arrangements with other governments whose interests are engaged, and damage to the effectiveness of valuable intelligence operations.

13 Mr Dotcom met this evidence with an assertion that much of what Mr Mansfield called GCSB's “tradecraft” is in the public domain, a consequence in part of leaks by Edward Snowden and others of documents prepared by security agencies in the United States and other jurisdictions. He tendered evidence, notably in the form of an affidavit of Glenn Greenwald, a leading investigative journalist and lawyer. In Mr Greenwald's opinion, disclosure would not prejudice the interests identified by GCSB. He describes publicly-known surveillance techniques and methods practised by intelligence agencies which share information with New Zealand under the “Five Eyes” arrangement established after World War 2.

No Prime Ministerial certificate as to national security risk

14 Section 27(1) of the Crown Proceedings Act 1950 allows a court to order that the Crown give discovery and answer interrogatories, in any proceeding to which it is a party or third party, as if it were a private person of full age and capacity. Section 27(1) is “without prejudice” to any rule of law which authorises or requires non-disclosure where disclosure would be injurious to the public interest.

15 The section goes on to authorise rules securing...