Kim Dotcom's lawyer denies delaying tactics

Megaupload founder. Photo / Sarah Ivey

The lawyer for internet mogul Kim Dotcom vehemently denied in the Court of Appeal today that requesting the Government's spy agency to hand over its evidence is a delaying tactic.

The Government Communications Security Bureau (GCSB) is appealing against a High Court decision by Justice Helen Winkelmann that it needs to disclose evidence it gathered while spying on Dotcom.

The unlawful surveillance on Dotcom by the GCSB was exposed during a judicial review into the legality of a police search warrant on his home and the seizure of his assets.

The Crown admitted the GCSB's actions were illegal and Dotcom was later cleared to pursue a case for damages against the police and the GCSB.

William Akel, appearing for Dotcom at the hearing in Wellington, said Justice Winkelmann ruled the agency's disclosure would be relevant to any damages.

He had asked for all the GCSB files.

Justices Mark O'Regan, Raynor Asher and Douglas White asked Mr Akel why he had requested all the files.

"It smacks of trying to delay the proceeding and that is not a good position for you to be in," Justice France said.

They said it seemed like a delaying tactic and he should narrow his focus on what he should ask for.

Mr Akel strongly denied he wanted a delay in the case and said because he did not know what was in the files, it was impossible to know what to ask for.

"You don't know what you don't know."

He said at no stage during the hearings had he or his team tried to delay the proceedings.

"It's not because of us that we are here today," he said.

In his submission, Mr Akel said: "If the unlawful surveillance exceeded the scope of that surveillance which has been disclosed to the plaintiffs and the court, it is appropriate for the true scope of the unlawful activity to be disclosed so that the court can properly assess the scope of the unlawfulness and potential unreasonableness of the search conducted by the GCSB."

But David Boldt (SUBS TICK), appearing for the Crown, told the court if the GCSB was forced to give up evidence it collected, court hearings would be delayed and nothing relevant would be gained.

He said Justice Winkelmann erred in ordering the GCSB to hand over substantial discovery.

"We say her honour was wrong to order the extent of discovery in this case."

The discovery would "raise issues"and cause delays to Dotcom's extradition hearing, he said.

Mr Boldt was asked by Justice O'Regan how long it would take to get the discovery together. He said it would take days, and would need to be checked.

Mr Boldt also said none of the information would be relevant to Dotcom's extradition hearings because the GCSB had nothing to do with the search warrant or the search. Dotcom is fighting extradition to the United States to face charges relating to his former Megaupload empire.

"It yielded virtually nothing ... it was fairly bland intelligence that didn't help particularly at all."

The GCSB also did not share their information with police, Mr Boldt said.

He added that Dotcom would not be able to pursue costs from the GCSB because damages could not be claimed in a judicial review.

The hearing finished this afternoon and the decision has been reserved.