Court of Appeal: Kim Dotcom v Twentieth Century Fox Film Corporation And Ors

A The appeal is dismissed.
B The 20 August 2014 order of the High Court dealing with confidentiality and the 29 August 2014 order of this Court dealing with confidentiality are set aside.
C The confidentiality orders set out in [45] are substituted.
D The appellant is to pay the respondents’ costs as for a standard appeal on a band A basis with usual disbursements.

Introduction

[1] Mr Dotcom appeals against a judgment delivered by Courtney J in the High Court at Auckland on 30 July 2014.1 The Judge made this ancillary order:

By 20 August 2014 Mr Dotcom is to file and serve an affidavit setting out the nature, extent and value of his assets wherever they are located and identifying the nature of his interest in them.

[2] In appealing against that order Mr Dotcom takes four points. We state them as questions:

(a) Jurisdiction: Did the High Court have jurisdiction to make the ancillary order?

(b) Requirements: Was the High Court wrong to conclude the respondents have a good arguable case and a sufficient prospect the United States Court will give judgment for a sum exceeding the value of assets currently restrained?

(c) Submission to jurisdiction: Did the High Court err in concluding there is a sufficient prospect of enforcement in New Zealand of any United States judgment, because Mr Dotcom had submitted to the United States jurisdiction?

(d) Inconsistency: Is the ancillary order inconsistent with the stay order made by the United States Court?

Background

Criminal proceedings
[3] Mr Dotcom, Megaupload Ltd, Vestor Ltd and six other individual defendants face criminal charges in the United States of America. The charges are before the United States District Court for the Eastern District of Virginia (the Virginia Court). The charges include criminal copyright infringement.
[4] Mr Dotcom is resident in New Zealand. The United States is seeking extradition of Mr Dotcom to face trial in the United States. The extradition application is scheduled to be heard by the Auckland District Court in February 2015.

[5] In January 2012 the United States Government obtained orders from the Virginia Court restraining Mr Dotcom’s use of his assets in various countries including Australia, Germany, Hong Kong, the Netherlands, New Zealand, the Philippines, the United Kingdom and of course in the United States. On 18 April 2012 the High Court ordered that those restraining orders be registered in New Zealand.3 Registration was for an initial period of two years. In a judgment this Court delivered on 21 August 2014, it ordered that registration be extended for one further year, to 18 April 2015.

[6] It is agreed that the value of Mr Dotcom’s New Zealand assets secured by those criminal restraining orders is NZD11.8 million.

Result

[46] The appeal is dismissed. The ancillary order made by the High Court on 30 July 2014 stands.

Costs
[47] Ms Walker submitted that a settlement offer made by Mr Dotcom means costs should not follow the event. We have considered the letter dated 29 September sent by Mr Dotcom’s solicitors to the respondents’ solicitors. The disclosure and confidentiality terms offered in that letter differ from the orders we have substituted in [45] above.

[48] The position is that Mr Dotcom has unsuccessfully run an appeal which he himself regarded as rendered nugatory by his failure to obtain a stay of the ancillary order, with the result that he has in the interim complied with that order. He did not have to run that appeal. He could have restricted the contest to an application for orders restricting the use of and access to the two disclosure of assets affidavits he has sworn.

[49] In those circumstances, Mr Dotcom is to pay the respondents’ costs as for a standard appeal on a band A basis with usual disbursements.

Click here to read the full judicial decision.

ENDS

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