IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
CRI-2015-404-000429
UNDER the Extradition Act 1999
IN THE MATTER of an appeal on questions of law by way of
case stated, under s 68 of the Extradition
Act 1999
BETWEEN MATHIAS ORTMANN
First Appellant
KIM DOTCOM
Second Appellant
BRAM VAN DER KOLK
Third Appellant
FINN HABIB BATATO
Fourth Appellant
AND THE UNITED STATES OF AMERICA
Respondent
…/intituling cont
Hearing: 9 February 2016
Counsel: GM Illingworth QC, PJK Spring and AK Hyde for First and Third
Appellants
RM Mansfield and SL Cogan for Second Appellant
Fourth Appellant in person
JC Gordon QC and M Ruffin for Respondent
Minute: 9 February 2016
MINUTE (No 2) OF ASHER J
Solicitors/Counsel:
Keegan Alexander, Auckland.
Anderson Creagh Lai Ltd, Auckland.
Crown Law, Wellington.
GM Illingworth QC, Auckland.
JC Gordon QC, Auckland.
R Mansfield, Auckland.
CIV-2015-404-001770
UNDER the Judicature Amendment Act 1972, Part 30 of the High Court Rules and s 27(2) of the New Zealand Bill of Rights Act 1990
BETWEEN KIM DOTCOM
Plaintiff
AND THE UNITED STATES OF AMERICA First Defendant
THE DISTRICT COURT AT NORTH SHORE
Second Defendant
CIV-2015-404-001733
UNDER the Judicature Amendment Act 1972, Part 30 of the High Court Rules and s 27(2) of the New Zealand Bill of Rights Act 1990
BETWEEN MATHIAS ORTMANN
First Plaintiff
BRAM VAN DER KOLK
Second Plaintiff
FINN HABIB BATATO
Third Plaintiff
AND THE UNITED STATES OF AMERICA
First Defendant
THE DISTRICT COURT AT NORTH SHORE
Second Defendant
[1] This is the first call of this appeal. It has also functioned as a case management conference for the two judicial review proceedings.
[2] I have before me an application for priority fixture and combined hearing on behalf of the United States. I also have memoranda from the appellants, excluding Mr Batato.
[3] I direct that the appeal and two judicial review proceedings be set down for a combined hearing for eight weeks1 commencing on 29 August 2016. There is no objection to the allocation of this fixture date by the appellants (although Mr Mansfield is faced with a conflicting priority fixture which can hopefully be accommodated). The eight weeks is a generous estimate of the hearing time. Ms Gordon has suggested that the hearing may in fact take only some four or five weeks. She may well be right, but the Court may allocate a generous period of time as a precaution.
[4] The United States sought an earlier fixture. However, it is my view that this timeframe, which will involve a lead-up of approximately seven months from now to the hearing, is in all the circumstances given the complexity of the appeal and multiplicity of proceedings appropriate.
[5] It is premature to make detailed timetable directions in relation to the appeal. There will be a face to face conference at 9 am on Tuesday, 8 March 2016. At that conference I will make detailed timetable directions. I would ask counsel to confer on the appropriate timetable and file a memorandum or memoranda recording their positions.
[6] I record that all parties are working to finalise the cases stated. There was a conference pending in that regard in the District Court. It is hoped that the cases stated will be finalised in the near future. Obviously this is a priority.
1 See addendum at the end of this minute.
[7] The only timetable direction I make is that there are amended statements of claim to be filed in the judicial review proceedings. These are to be filed by Friday, 4 March 2016.
[8] The position of Mr Batato is different from that of the other appellants. He is not represented. He sought legal aid at the last hearing. When that was not granted the Court appointed an amicus curiae to act for him. There is no amicus curiae at present appointed.
[9] Mr Batato is to going to apply for legal aid in respect of this appeal. He should file his application with all possible speed, preferably within the next few days. It is necessary for there to be a determination on his legal aid application again with all possible speed, ideally within a week so that matters such as the cases stated can be considered and finalised.
[10] In respect of his position, no case stated has yet been filed. He informed me that he intends with the permission of the other appellants to follow their form of case stated and file one within the requisite time limit on that basis.
[11] To ensure that there are no unforeseen delays and that this case proceeds fairly for all parties, it must be closely case managed. Although I have set this date for a face to face conference, I am also going to set a date for a telephone conference for 9 am Tuesday, 23 February 2016. Prior to that conference, by midday on Monday 22 February 2016, I would be grateful if counsel would file a memorandum or individual memoranda updating the Court on progress.
[12] If I am advised that adequate progress has been made and that there are no concerns I will vacate that telephone conference. If, however, there are problems then the telephone conference will take place. I would be grateful if Mr Batato would advise the Court at that point as to the progress of his case stated and application for legal aid.
[13] The judicial review proceedings are listed for call on 4 March 2016. That is vacated and no appearance by counsel is required.
Addendum
[14] I have reflected on the time proposed for hearing, particularly in light of Ms Gordon’s observations. It seems to me that no more than six weeks will be required with the expectation that the hearing could take place within four weeks. The allocation is therefore for a six week fixture.
……………………………..
Asher J
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