ORDER PROHIBITING ACCESS TO UNITED STATES DEPARTMENT OF
JUSTICE LETTER DATED 3 SEPTEMBER 2015 ON TERMS SET OUT IN
[26] OF THIS JUDGMENT
IN THE COURT OF APPEAL OF NEW ZEALAND
CA449/2015
[2015] NZCA 443

BETWEEN

MATHIAS ORTMANN
First Appellant
BRAM VAN DER KOLK
Second Appellant
FINN HABIB BATATO
Third Appellant

AND

THE DISTRICT COURT AT NORTH
SHORE
First Respondent
THE UNITED STATES OF AMERICA
Second Respondent
CA473/2015

BETWEEN

KIM DOTCOM
Appellant

AND

THE UNITED STATES OF AMERICA
First Respondent
THE DISTRICT COURT AT NORTH
SHORE
Second Respondent

Hearing:

8 September 2015

Court:

Wild, Fogarty and Mallon JJ

Counsel:

G M Illingworth QC and A K Hyde for First and Second
Appellants in CA449/2015
Third Appellant in CA449/2015 in Person
R M Mansfield and S L Cogan for Appellant in CA473/2015
No appearance for The District Court at North Shore in both
appeals (abides Court's decision)

ORTMANN v THE DISTRICT COURT AT NORTH SHORE [2015] NZCA 443

 J C Gordon QC, M J Ruffin, FRJ Sinclair and F G Biggs for
The United States of America in both appeals

Judgment:

14 September 2015 at 11.30 am

JUDGMENT OF THE COURT

A

The appeals are dismissed.

B

The appellants are to pay the United States of America’s costs as for one
standard appeal on a band A basis with usual disbursements.

C

Order prohibiting access to United States Department of Justice letter
dated 3 September 2015 on terms set out in [26] of this judgment.

____________________________________________________________________

REASONS OF THE COURT
(Given by Wild J)
Introduction and background
[1]

The United States of America seeks to extradite the appellants to the United

States to face trial on the charges on which they have been indicted there.
[2]

The hearing of that application is scheduled to commence in the North Shore

District Court on 21 September 2015. That is, in one week.
[3]

That fixture is the tenth one that has been made by the District Court.

[4]

On 14 July the appellants applied to the District Court to stay the extradition

proceeding on abuse of process grounds. They submit the United States of America
has prevented their proper defence of the extradition application. Specifically, they
say the United States, on 23 and 24 June 2015, advised that any monies paid by them
to counsel or experts in the United States would be forfeit, and that receipt of such

 forfeit money would constitute a criminal offence in the United States. They claim
they need the assistance of American lawyers and experts properly to defend the
application for their extradition. The position advised by the United States means
they are unable to retain American counsel or experts and thus to mount a proper
defence.
[5]

After hearing counsel in a teleconference on 20 July, Judge Dawson issued a

minute on 21 July declining the appellants’ request to hear their stay application
before the extradition hearing commenced on 21 September. The Judge expressed
the view that the matters raised by the appellants in their stay application “would
best be heard during the extradition hearing commencing on 21 September”.1
[6]

The appellants applied to the High Court for judicial review of Judge

Dawson’s decision. They applied also for the High Court to stay the extradition
proceeding, seeking to invoke the High Court’s inherent supervisory jurisdiction.
[7]

The appellants in CA449/2015 (the Ortmann appellants) filed their

application in the High Court on 30 July. Mr Dotcom filed his application in
CA473/2015 on 5 August.
[8]

The Ortmann appellants’ application came on for first mention in the Judicial

Review List in the High Court at Auckland before Katz J on 6 August. Counsel for
the Ortmann appellants sought an urgent priority two-day fixture for the proceeding
to take place before the extradition hearing in the District Court on 21 September.
After hearing submissions, albeit on a busy court morning with other counsel waiting
to be heard, Katz J directed:2
[17]
The application for a priority fixture for these proceedings is
accordingly declined. The proceedings are adjourned to be heard together
with any appeal from the District Court’s substantive decision on the stay
application.

1

2

United States of America v Dotcom DC North Shore, 21 July 2015 (Minute of Telephone
Conference of Judge N R Dawson).
Ortmann v The United States of America HC Auckland CIV-2015-404-1733, 6 August 2015
[Minute of Katz J].

 [9]

Mr Dotcom made a similar application to Peters J when his proceeding came

on for first mention in the Judicial Review List before her, also in the High Court at
Auckland, on 13 August. Justice Peters gave a similar direction.3
[10]

The appellants appealed to this Court, the Ortmann appellants on 7 August

2015 and Mr Dotcom on 21 August 2015.

Harrison J entered the appeal in

CA449/2015 on the fast track in his minute of 20 August, and it was allocated a
half-day hearing for 8 September.4 Mr Dotcom’s 21 August application to have his
appeal heard together with CA449/2015 was granted by Harrison J on 25 August.
Counsel had assured the Judge only two hours hearing time was needed.
The North Shore District Court abides this Court’s decision and sought leave

[11]

on 18 August to be excused from further attendances. Leave is granted.
The hearing before this Court
[12]

In fact the hearing, which took place on 8 September, took a little over a half

day. We heard more than three hours of high speed argument. This came on top of
written submissions running to some 177 pages, including chronologies and other
attachments. We were given a bundle of authorities containing 45 cases and more
were handed up or referred to during the hearing. There was a bundle of key
documents running to 292 pages. The case on appeal itself comprises three volumes,
once of which is printed in 12 parts — in all, 3,231 pages. By the end of the hearing,
it was apparent to the Court that giving a judgment that did justice to the arguments
presented was an impossible task in the available time, given the volume of material
presented. And the Court so commented when reserving its judgment. We took the
view a judgment was needed within a few days, so the parties knew where they
stood.
[13]

The essential dispute is as to whether the appellants do need the assistance of

American lawyers and experts properly to defend the application for their

3

4

Dotcom v The United States of America HC Auckland CIV-2015-404-1770, 13 August 2015
(Minute of Peters J).
Ortmann v The District Court at North Shore CA449/2015, 20 August 2015 (Minute of
Harrison J).

 extradition. They say they are “convinced” they do. In brief and likely inadequate
outline their argument is:
(a)

Before the appellants are eligible for extradition, there must be a
prima facie case they have committed an extradition offence.5 As a
starting point in interpreting the Treaty on Extradition between the
United States of America and New Zealand (Extradition Treaty)6 and
the offences listed in it, the Court will apply the principle contained in
the Vienna Convention and look to the parties’ intentions at the time
of signing up to it.7 The appellants need to be able to call evidence
from an American expert as to the relevant intentions. For example
the appellants are charged with conspiracy to breach copyright. There
is an issue whether that is comprised in the offence of conspiracy to
defraud, contained in the Extradition Treaty.

(b)

The United States has put American law in issue by referring to it in
the prosecutor’s affidavit filed in support of the extradition
application. Natural justice requires that the appellants be able to call
evidence from an American expert to challenge the prosecutor’s
evidence, and to mount an argument that the United States has
breached the duty of candour required of a requesting state.8

(c)

The charges allege the appellants’ website, Megaupload, was run in
such a manner as to provide an inference that the appellants were
party to breaches of copyright. The appellants therefore need to be
able to call technical evidence from American experts as to the way
similar cloud storage websites are run and how Megaupload ran and
responded to copyright holders’ complaints.

5
6

7

8

Extradition Act 1999, s 24(2)(c).
Treaty on Extradition between the United States of America and New Zealand 791 UNTS 253
(signed 12 January 1970, entered into force 8 December 1970), art II(16).
Vienna Convention on the Law of Treaties (entered into force 27 January 1980) 1155 UNTS
331, art 31. See also Government of United States of America v Cullinane [2003] 2 NZLR 1
(CA).
Under the Extradition Act, s 25.

 (d)

The effect of the United States’ actions is that they are unable to
instruct counsel or other experts from America, leaving them unable
to mount a defence at the eligibility hearing and resulting in a breach
of natural justice.

(e)

Such a breach of the appellants’ rights to natural justice cannot be
corrected on appeal or review. The appellants are entitled to have the
principles of natural justice observed at every stage of the
proceeding.9

[14]

The United States is equally adamant the appellants do not need American

expertise or legal assistance. Its argument, in equally brief outline, is:
(a)

Judge Dawson has simply made a timetabling decision that he will
address the appellants’ stay application during the eligibility hearing.
The appellants will have an opportunity to mount their natural justice
argument then. It will be better assessed in the context of the whole
case including consideration of the pathways by which they may be
eligible for extradition.

(b)

They will also be able to address any remaining natural justice
concerns as part of the appeal process or by seeking judicial review
after the District Court hearing.

(c)

In any case, there is no breach of natural justice:
(i)

The evidence the appellants wish to adduce regarding
American law is not relevant as the extradition process
requires that the requesting state show only a prima facie case
that the appellants have committed a treaty offence. In this
case the relevant offences alleged are offences under New
Zealand law or the Extradition Treaty, not United States law.

9

Relying on Secretary for Justice v Simes [2012] NZCA 459, [2012] NZAR 1044 at [109]–[111]
and Reid v Rowley [1977] 2 NZLR 472 (CA) at 478–482.

 (ii)

The appellants’ submissions regarding technical evidence are
vague and do not explain how evidence of cloud storage
industry practice affects their eligibility for extradition. In any
case, the appellants can give evidence themselves as to
technical aspects of Megaupload and cloud storage systems if
they wish. They ran Megaupload for several years.

[15]

The Court cannot resolve this argument with the speed it aims to accord fast

track matters, let alone in a judgment that, in the circumstances of this case, must be
given urgently. That implies no criticism of the parties. It is simply that this Court
does not have the resources urgently to resolve a dispute which is not straightforward
and involves fundamental disagreement between the parties.

Each party may

consider the issue is open to an obvious answer – their answer. But the sheer length
of the parties’ submissions and the amount of case law to which they referred belies
that.
Decision
[16]

So, what to do? For three reasons our decision is to dismiss these appeals,

with the consequence that the extradition hearing will proceed as scheduled on
21 September.
[17]

First, jurisdiction under the Extradition Act 1999 has been vested by

Parliament in the District Court.10 Since the United States filed, on 13 January 2012,
its application for provisional arrest of the appellants in New Zealand, the District
Court has been attempting to case-manage the application toward a timely hearing.
And rightly so, because this country does have an extradition treaty with the United
States.
[18]

In her 6 August decision, Justice Katz noted that counsel for the appellants

estimated the urgent hearing they sought would take two days, whereas counsel for
the United States said that the hearing time required “could be up to two weeks”.11
The Judge accepted the latter estimate as being more accurate with the result that
10
11

Extradition Act, ss 19, 20, 21, 41, 42, 68.
Minute of Katz J, above n 2, at [7].

 granting the fixture sought “would very likely lead to a loss of the 21 September
2015 hearing date in the District Court”.12
[19]

Secondly, appellate courts should be cautious about interfering in the

pre-hearing processes of the District Court in its criminal jurisdiction. There are
sound policy reasons for that caution and ample authority explaining and supporting
it.13 In her decision Katz J quoted some passages from an earlier judgment she had
given on an application to adjourn a (previous) fixture for the extradition hearing:14
[107] Several of the alleged errors could potentially fall within the
category of decisions that are “simply procedural or administrative and will
therefore not affect rights or privileges so as to amount to the exercise of a
‘statutory power of decision’ within the Judicature Amendment Act 1972.”
Overall, though, I see the issue as one of discretion, rather than jurisdiction.
I note that it is overwhelmingly clear from the case law that the power to
review procedural decisions of inferior courts exercising their criminal
jurisdiction is to be sparingly exercised. This court will generally not
recognise a right of review from interlocutory decisions when these can be
dealt with by post-trial appeal.
[108] The extradition process mirrors (with any necessary modifications)
the previous committal process under the [Summary Proceedings Act 1957]
in respect of indictable offences. Higher courts may intervene in committal
proceedings, but will do so in a restrained manner. British case law has
similarly held that committal proceedings should only be judicially reviewed
in cases of “really substantial error leading to demonstrable injustice”.
Exceptional circumstances will be needed before the court will intervene
where it is claimed that committal proceedings have been wrongly continued
by errors of law, procedure or evidence. This approach reflects in part that,
at the committal stage, a person is not at risk of conviction. Rather,
committal is an initial screening process aimed at establishing if there is
sufficient evidence to proceed to trial.
[109] There are strong policy reasons weighing against constant disruption
of pre-trial processes by applications to a higher court and then, potentially,
further appeals from that decision.
Micro-management of pre-trial
procedure by higher courts risks delaying and fragmenting the criminal
process. Policy factors militate toward only allowing review (or only
granting relief) if the error is blatant, or will potentially lead to serious
injustice that cannot be corrected on appeal.

12
13

14

At [13].
For example, see: Auckland District Council v Attorney-General [1993] 2 NZLR 129 (CA) at
136; Gill v Attorney-General [2010] NZCA 468, [2011] 1 NZLR 433 at [16]–[29]; C v
Wellington District Court [1996] 2 NZLR 395 (CA) at 400; Neill v North Antrim Magistrates
Court [1992] 1 WLR 1220 (HL); Graham Taylor Judicial Review: A New Zealand Perspective
(LexisNexis, Wellington, 2014) at 52–53.
Minute of Katz J, above n 2, at [15], citing Ortmann v District Court at North Shore [2015]
NZHC 901 (footnotes omitted).

 [20]

We endorse what Katz J then said:15
[16]
Those observations apply with equal force in the current
circumstances. The District Court hearing scheduled to commence in
September will take place more than three and a half years after the
applicants were first arrested. As the Court of Appeal has stressed, it is now
necessary to proceed to an extradition hearing without further interlocutory
intervention in the absence of “exceptional” circumstances. I am not
satisfied that such exceptional circumstances exist.

[21]

Thirdly, and perhaps most fundamentally, we are satisfied that proceeding

with the stay application and the extradition hearing together on 21 September will
not deprive the appellants of adequate remedies. It will be for Judge Dawson (we
understand he will be presiding) to determine how he proceeds. If he decides the
actions of the United States have deprived the appellants of American expertise they
need properly to defend the extradition application, then inevitably he will have to
adjourn the extradition hearing.
[22]

If the Judge decides such expertise is not needed, and holds the appellants are

eligible for extradition, then the combination of judicial review and the right of
appeal in s 68 of the Extradition Act will provide the appellants with ample remedies
should they not accept the outcome. We add that the decision as to whether the
appellants need American expertise properly to defend the extradition application is
best made at first instance by Judge Dawson. That is because he will be seized of the
evidence and submissions supporting and opposing the application in a way this
Court, at present, is not. The appellants’ reliance on Zaoui v Attorney-General
(No 2) to support their argument that this Court should allow their appeals and stay
this extradition proceeding is misplaced, because in that case there was a possibility
that the whole process would miscarry, with grave consequences. 16 In this case, as
we have said, the appellants’ right to a fair hearing will be protected.
[23]

At the forefront of the arguments by counsel for the appellants was the

appellants’ right to natural justice. That is, their right to a fair extradition hearing.
That encompasses the ability adequately to advance available defences. Counsel for
the United States could not — and did not — take any issue with any of that. The

15
16

Minute of Katz J, above n 2.
Zaoui v Attorney-General (No 2) [2005] 1 NZLR 690 (CA).

 dispute was as to whether natural justice requires the appellants to have access to
American expertise and legal assistance. For the reasons we have explained, this
Court is unable to resolve that dispute with the urgency required. But we are
satisfied that if there is a need, and it is not afforded to the appellants, they will have
adequate remedies. In short, we are satisfied there is no risk of any breach of the
appellant’s right to a fair extradition hearing going unremedied.
Result
[24]

The appeals are dismissed.

[25]

The appellants are to pay The United States of America’s costs as for one

standard appeal on a band A basis with usual disbursements.
[26]

Pursuant to the United States’ request under the Court of Appeal (Access to

Court Documents) Rules 2009, we make an order prohibiting access to the United
States Department of Justice letter dated 3 September 2015, except by:
(a)

New Zealand courts, as necessary;

(b)

the appellants; and

(c)

any person who receives a release of funds for legal representation in
connection with the extradition proceedings.

Solicitors:
Keegan Alexander, Auckland for First and Second Appellants in CA449/2015
Anderson Creagh Lai Ltd, Auckland for Appellant in CA473/2015
Crown Law Office, Wellington for The United States of America