Just as I was wondering when our Supreme Court’s decision in Ortmann v United States of America [2020] NZSC 120 would be delivered, here it is today! You can’t be quicker than that.
Some people grumble at how rich people clog up the courts with their interminable litigation, but I don’t. We have had a lot of legal issues decided in these proceedings, simplifying the law for future would-be litigants.
Most of these proceedings are concerned with the law of copyright and its application in the digital, and specifically, internet, environment. Largely fit for purpose, at least in the context of the issues in this case.
The Supreme Court decision held that as far as the substantive law is concerned, the way here is clear for an order for surrender for extradition on nearly all of the charges. As far as procedural law is concerned – and there can’t be a finding of eligibility for surrender if the procedure by which that determination was made was faulty, unless the faults were inconsequential – there is more to be decided, and more submissions from counsel were called for.
Some alleged procedural failures had been targeted when the District Court decision went on review to the High Court ([2017] NZHC 189): a failure of the judge to give reasons, peremptory dismissal of applications, criticism of failure of the defendants to prove matters when no opportunity had been given, failure to address an application for stay of proceedings, the jurisdiction to consider stay applications, and the test for abuse of process and stay applications. On appeal, the Court of Appeal ([2018] NZCA 233) said most of these issues were considered in the substantive appeal, but to the extent that they remained procedurally relevant on review they were without merit. However, the Supreme Court needed to decide whether the procedural challenges remained live issues, and if so, in which court – Court of Appeal or Supreme Court - they should be heard.
It seems ([588]) that review issues remaining may include procedural unfairness and breach of natural justice, errors of fact, unreasonableness, application for a stay of proceedings, and the residual discretion to intervene arising from cumulative errors.
Update 22 February 2021: The Supreme Court remitted the case to the Court of Appeal, to determine what the issues were and to decide them: Ortmann v United States of America [2021] NZSC 9.
Update 12 July 2021: The Court of Appeal determined that there were no outstanding issues: Ortmann v United States of America [2021] NZCA 310.
