Court of Appeal confirms December 5 High Court decision allowing the internet mogul to seek damages against the spy agency - but is knocked back on access to evidence. RAW DATA: Read the decision.
Kim Dotcom's right to sue the GCSB for illegal surveillance has been confirmed in a Court of Appeal decision.
But at the same time the internet mogul has suffered a setback in its bid to see all of the evidence the government spy agency collected against him and co-defendant Bram van der Kolk.
The Crown had appealed a December 5, 2012 High Court decision that the Government Communications Security Bureau be made a party to the judicial review of the police raid on his Kim Dotcom's home, and that the internet mogul can seek damages from the spy agency in a hearing set for April. The GCSB has already admitted it failed to realise Mr Dotcom was a New Zealand resident, meaning it was illegal to spy on him and pass information to police.
Kim Dotcom's lawyer, Simpson Grierson partner William Akel, told NBR ONLINE he was pleased the December 5 decision had been confirmed.
"We will be seeking compensation from the GCSB," Mr Akel says.
"At this stage we can't put a figure on it." A figure will form part of his submission at the April hearing.
Mr Akel now expects to be able to grill GCSB staff, "although the Crown may oppose that."
Evidence knock-back
However, the ruling did not all go the defence team's way.
The Court of Appeal deleted the requirement for the Crown to provide Kim Dotcom and co-defendents all evidence collected by GCSB, as ruled by Chief High Court Judge Helen Winkelmann on December 5. The defence team will now only have partial access to information collected by the spy agency.
The December 5 decision recorded the request by Messrs Dotcom and van der Kolk for further disclosure of "All information collected by the GCSB in relation to the plaintiffs, their families and any associated individuals."
The Court of Appeal ruling says only information passed on by the GCSB to police can be part of the April hearing.
The court's rationale is that the GCSB has admitted the illegality of its surveillance of Kim Dotcom as a New Zealand resident and the inquiry has the "relatively limited scope" of assessing the appropriate level of compensation.
It also notes that "counsel then acting for the Crown argued that, although some of the material would be relevant," full access to all informaiton collected by the spy agency "would also incorporate disclosure of lawful interceptions relating to those of the respondents who were not New Zealand residents." The Court of Appeal judges accepted this security concern.
Mr Akel told NBR ONLINE that so far the defence team has only had access to an affidavit filed by the GCSB, which he describes as "a very abbreviated summary of information that was provided to the police to support them when Mr Dotcom's home was raid on January 20 last year."
Full access to the GCSB information passed on to police has, at this stage, only been provided to Queen's Counsel Stuart Grieve, who, in an unusual and rare move, was appointed by the Crown to assist with the judicial review.
Mr Grieve will report on that evidence next month at what the defence team anticipates will be a closed hearing.
The remedial hearing is set to resume in the week beginning April 15.
RAW DATA: Read the Court of Appeal decsion
GCSB now a defendant in Dotcom case; Dotcom can seek damages
Dec 6, 2012: Internet mogul Kim Dotcom has won his bid to have the Government Communications Security Bureau included as a defendant to the judicial review of the police raid on his home.
Chief High Court Judge Helen Winkelmann has released her decision joining the GCSB to the proceedings.
The decision means Mr Dotcom’s lawyers will be able to seek documents from GCSB, through the court’s discovery process, as they continue to fight his extradition to the US to face copyright charges in relation to his file-sharing website Megaupload.
The court also allowed him to seek damages from both the police and the GCSB.
The GCSB, specialising in electronic surveillance, became involved in the FBI’s investigation of Mr Dotcom about a year ago.
Its spying on Mr Dotcom, in the lead up his January 20 arrest during a police raid at his home, was later declared illegal because the agency had not checked that Mr Dotcom was a New Zealand resident.
Mr Dotcom pushed for the GCSB to be brought into the proceedings because of his suspicions of its surveillance of him.
Today's High Court decision includes a direction that a New Zealand police liaison officer in Washington, Detective Superintendent Mike Pannett, is to provide details of any of his surveillance of Mr Dotcom and the termination of Megaupload.
Detective Inspector Grant Wormald – who supervised the joint FBI-police raid on Mr Dotcom’s home – has also been ordered to file an affidavit setting out all dealings involving stationary cameras used in the raid.
Justice Winkelmann earlier determined that aspects of the police search and seizure operation at Mr Dotcom’s rented mansion in Coatesville, north of Auckland, was illegal.
ckeall@ nbr.co.nz | gbond@nbr.co.nz
