Three years after the raids that dismantled his Megaupload empire, it was clear that Kim Dotcom was digging in for the long haul.
Whether even he anticipated just how long that haul would be is unclear. Having taken every imaginable step to make his prosecution and likely extradition as difficult as possible, it certainly can’t be ruled out.
For Dotcom, information has proven to be a valuable and flexible commodity; in 2015 he made dozens of requests to numerous government departments to gain what he described as ‘urgent’ access to information to assist in his looming extradition defense.
Vexatious Requests Denied
With Dotcom’s case already a political hot potato, decisions were made to transfer these requests, mostly under s39 of the Privacy Act, to then-Solicitor General Chris Finlayson. Due to their broad scope, allegedly including demands for trivial information, Finlayson labeled the requests frivolous and ultimately vexatious.
The Solicitor General noted that the July 2015 information requests were labeled urgent because Dotcom’s extradition eligibility hearing was due to take place in September at the District Court. However, the nature of the requests led him to conclude that their true purpose was to disrupt that hearing and since they weren’t made in good faith, he rejected them all.
Dotcom Takes Legal Action
Dotcom denied he had an ulterior motive and followed up with legal action, claiming that the government was holding back information to which he was legally entitled.
In Dotcom v Crown Law Office [2018] NZHRRT 7 (pdf), the Human Rights Review Tribunal found that the Crown had indeed interfered with Kim Dotcom’s privacy by rejecting what was described as “multiple, near identical, Privacy Act requests made to all Ministers and nearly every government department for all personal information held about him.”
For “loss of dignity or injury to feelings” Dotcom won NZ$60,000 in damages plus another NZ$30,000 to compensate for the lack of disclosure. The Crown appealed that decision and in September 2018 the matter was heard at the High Court in Wellington.
High Court Sides With Solicitor-General
The High Court agreed with the Solicitor-General, noting that the requests were transferred for lawful reasons. The Court described the earlier damages award in favor of Dotcom as “wholly erroneous.” There was no evidence to show that the information being sought was even relevant to the extradition proceedings, the High Court ruled.
Months earlier, the government had actually started to respond to Dotcom’s requests and by mid-June 2018, “tranches of information” had been handed over to Dotcom, with a few exceptions for legal reasons.
Nevertheless, the High Court’s decision in October 2018 was labeled “a bad day for human rights” by Dotcom, who took his many grievances to the Court of Appeal.
Court of Appeal Sides With Dotcom
The Court of Appeal eventually sided with Dotcom and, by broad extension, the decision in his favor at the Human Rights Review Tribunal earlier. The transfer of the information requests between government departments breached Dotcom’s privacy, the Court of Appeal confirmed. All that remained was to determine the scale of Dotcom’s damages award.
Having previously ruled in favor of Dotcom with an award of NZ$90,000, in February 2022 the Tribunal decided that this time around, Dotcom wouldn’t receive a penny. In response, Dotcom appealed once more to the High Court, but it also declined to award him damages. When Dotcom applied for leave to appeal the High Court’s decision at the Court of Appeal, the High Court rejected that too.
Application for Special Leave to Appeal
Never one to give up, Dotcom filed an application at the Court of Appeal. He requested special leave to appeal the decision of the High Court, which had dismissed his appeal against the decision of the Human Rights Review Tribunal, which had awarded him zero damages.
Late last month, Dotcom’s application for special leave to appeal was declined by the Court of Appeal. The reasoning behind that decision is laid out in considerable detail in the court’s decision, which is linked below.
What is clear, however, is that Dotcom’s focus on receiving an award for damages for “loss of benefit” under New Zealand’s Privacy Act, concerned his inability to use the information requested during the extradition proceedings. That failed to move the needle at the Court of Appeal.
“It is clear from the various judgments given in the extradition proceedings that there would have been no benefit to Mr Dotcom if he had received the information requested at the time the extradition proceedings were underway. The Courts consistently held that the peripheral matters raised by Mr Dotcom were irrelevant to the extradition process, given the Court’s limited role in determining a person’s eligibility for surrender,” the Court of Appeal’s decision reads.
“Following the Tribunal complaint decision, Mr Dotcom sought to raise before this Court the fact that the Tribunal had found that there had been an interference with his privacy and had awarded him [NZ]$90,000 in damages for breach of the 1993 Act. Mr Dotcom argued that the Tribunal complaint decision was relevant to the extradition hearing, because it confirmed an abuse of process that would undermine public confidence in the judicial system.
“This Court disagreed. It noted that the conduct at issue did not come close to establishing the high threshold required to stay extradition proceedings and that the attempt to rely on it for this purpose was misconceived.”
Tactics Noted But Ultimately Unsuccessful
Other matters were also considered by the Court, none of which went in Dotcom’s favor. In closing, the Court of Appeal made a general assessment of events relating to this application. From a few steps back, attributing it to most side issues raised by the defense, before numerous courts in more recent years, might not be an especially big stretch.
“This Court’s primary function is to clarify the law. It is not every alleged error of law that is of such importance, either generally or to the parties, as to justify the further pursuit of issues which have already been considered on multiple occasions. That is very much the case with the present application,” the decision reads.
In the absence of “any other reason” that would make it appropriate to grant Dotcom special leave to appeal, the application was denied.
The decision is available here (pdf)
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