Bram Van der Kolk, Kim Dotcom, Mathias Ortmann and Finn Batato presented a united front at the outset of the case. Photo / File
Bram Van der Kolk, Kim Dotcom, Mathias Ortmann and Finn Batato presented a united front at the outset of the case. Photo / File
The Megaupload defence has split in different legal directions, with Kim Dotcom's co-accused asking the Supreme Court to resolve a legal argument so as to avoid "delay".
Instead, the Supreme Court has accepted arguments from Dotcom and the United States, meaning the Court of Appeal will hear the legal argument.
The outcome of that, the judgment shows, is a likely appeal back to the Supreme Court.
It has been a decade since Crown Law began working on the Megaupload extradition case, ahead of the FBI's global operation to shut down the file-sharing site in raids in seven countries in January 2012.
New Zealand was a major focus of the FBI operation with Megaupload founder and majority shareholder Kim Dotcom here, having been granted residency in 2010.
Fellow Megaupload staff - marketing executive Finn Batato and programmers Bram van der Kolk and Mathias Ortmann - were in New Zealand to celebrate Dotcom's birthday.
Those first legal steps ahead of the raid have seen a multitude of judgments and appeals across 23 separate proceedings - a total of 40,500 hours of taxpayer-paid legal work.
It's some way from being over, with Dotcom forecasting years of legal warfare to come.
Today's Supreme Court judgment will stretch out resolution of the case further, although Batato, van der Kolk and Ortmann asked the court to take a faster route.
In the judgment, the Supreme Court set out a plan to resolve an issue identified when it ruled late last year that Dotcom and three others - Finn Batato, Bram van der Kolk and Mathias Ortmann - were liable for extradition to the United States.
At the time, it also ruled that Dotcom and his three co-accused didn't get an opportunity to raise technical legal issues at the Court of Appeal after it was found "judicial review proceedings were an abuse of process".
Having identified the problem, the proceedings were left in limbo until today's judgment, with the Supreme Court taking submissions from the accused and the US as to whether it or the Court of Appeal would hear the arguments on judicial review.
Kim Dotcom's wife Liz Dotcom - a lawyer - joined barrister Ron Mansfield at the Supreme Court. Photo / File
The judgment shows an odd turn of events, with Dotcom and the US both arguing for the case to be returned to the Court of Appeal. Opposed to this was Batato, van der Kolk and Ortmann, whose lawyers argued that the Supreme Court should resolve the issue.
It is thought to be the first time the co-accused have taken clear and separate directions on legal strategy.
The Supreme Court said it recognised Dotcom and the United States' determination to have the case returned to the Court of Appeal, and the potential of a future appeal.
"We are reluctant to override the preference of Mr Dotcom and the United States, given that both attach importance to the potential for an appeal against the decision resolving outstanding issues," the Supreme Court judgment said.
The three co-accused opposed the move, saying sending the case to the Court of Appeal, and then the "possibility" of further appeal back to the Supreme Court, "could cause further delay".
The decision will see the case set down to be heard at the Court of Appeal, and then the likely appeal scheduled for the Supreme Court. It comes at a time the courts are stretched to capacity because of Covid-19.
The legal route decided by the Supreme Court delays further a decision from Justice Minister Kris Faafoi, whose job it is to sign or reject the extradition warrant that will put the four men on a plane to the US.
Even then, years of legal argument lie ahead. Faafoi's decision could be scrutinised at the High Court through a judicial review, and the outcome of that sent to the Court of Appeal - and possibly back to the Supreme Court.
At 47 years, Dotcom is closing in on having spent a quarter of his life in New Zealand - a quantum that could grow to a third by the end of the case.
