Mr Banks' lawyer David Jones, QC, has now filed an application to the Court of Appeal to recall its ruling in October after he last month received fresh material from the Crown about the contentious lunch at the Dotcom mansion.
The bid is opposed by the Crown but Justice Ellen France, president of the Court of Appeal, has ordered that a transcript of the previous hearing be prepared.
Justice France confirmed the application had been made on behalf of Mr Banks but declined an application by the Herald to view the court file.
"I am conscious of the principle of open justice but in my view that factor is outweighed by the fact the Court has yet to consider the application and should be allowed to do so in an orderly and fair manner," she wrote.
Media will be allowed to be present at any hearing and any written judgment will be made public, said Justice France.
But in an earlier application to the High Court for the charge against Mr Banks to be dismissed for lack of evidence, Mr Jones also critical of the late disclosure of the "Butler Memorandum".
"If this material had been before the Court of Appeal, which it should have been, it is submitted it would have been a critical factor not only on the substantive appeal but also in the decision whether to order a retrial or not."
The memorandum was written by lawyer Rowan Butler who was instructed by Crown prosecutor Paul Dacre, QC, to interview Kim Dotcom about the affidavits filed by the two American businessmen before the appeal hearing.
The pair said they arrived in New Zealand on June 5, 2010 and were taken to Dotcom's Coatesville mansion, where they had lunch with Mr and Mrs Banks and Dotcom and his wife Mona. Nothing about electoral donations was discussed, according to their affidavits.
This is at odds with evidence given at the trial, where the Crown contended the lunch was held on June 9, 2010 and the presence of the Americans was denied by the Dotcoms, as well as their bodyguard Wayne Tempero.
The defence was able to prove at the trial there was no lunch on June 9, because Mr Banks was campaigning and Mrs Banks was at work.
In finding Mr Banks guilty, Justice Edwin Wylie said Dotcom was a good witness but he was wrong about the date of the lunch and ruled it must have happened on June 5.
But when interviewed by Mr Butler about the new affidavits before the Court of Appeal hearing, Dotcom accepted the evidence of the US businessmen - including that donations were not discussed at the June 5 lunch. Instead, he said there was a second lunch - again on June 9 - at which the donations were discussed.
The interview with Dotcom was never disclosed to Banks' legal team before the Court of Appeal hearing. The newly disclosed material contradicts all the evidence given at trial by the Dotcom witnesses, wrote Mr Jones.
"It has never been part of the Crown case nor has there been any prior suggestion that there were two lunches within a matter of days of each other, at which both Mr and Mrs Banks were present," wrote Mr Jones.
"How the Crown can now properly pursue this prosecution in the circumstances is unknown ... the Crown case will accordingly have to be completely recast in a way which, with respect, is utterly untenable."
The story so far
April 2012 - Kim Dotcom's $50,000 of anonymous donations to John Banks' mayoral campaign in 2010 become public.
July 2012 - Police do not lay charges after investigation.
November 2012 - Graham McCready takes private prosecution against the Act MP.
October 2013 - Banks resigns as a Minister after Judge Phil Gittos rules he should stand trial.
June 2014 - Banks found guilty after a High Court trial. Later he resigns from Parliament.
November 2014 - Banks is successful in overturning the conviction in the Court of Appeal.
January 2015 - Solicitor-General Mike Heron, QC, confirms a new trial. Scheduled for July.
March 2015 - Banks' lawyer David Jones, QC, seeks to have charge dismissed after the late disclosure of new material from the Crown. Now seeking Court of Appeal to recall its ruling which ordered a new trial.
