Commerce Commission v Air New Zealand Ltd

• Jurisdiction: New Zealand
• Judge: Asher J
• Judgment Date: 24 February 2012
• Neutral Citation: [2012] NZHC 271
• Docket Number: CIV-2008-404-008352 CIV-2008-404-008349 CIV-2008-404-008348 CIV-2008-404-008351 CIV-2008-404-008350 CIV-2008-404-008356 CIV-2008-404-008354
• Court: High Court
• Date: 24 February 2012

Between

Commerce Commission

Plaintiff

and

Air New Zealand Limited

Defendant

And Between

Commerce Commission

Plaintiff

and

Cathay Pacific Airways Limited

Defendant

And Between

Commerce Commission

Plaintiff

and

Emirates

Defendant

And Between

Commerce Commission

Plaintiff

and

Japan Airlines International Co Limited

Defendant

And Between

Commerce Commission

Plaintiff

and

Korean Air Lines Co Limited

Defendant

And Between

Commerce Commission

Plaintiff

and

Malaysian Airlines System Berhad Limited

Defendant

And Between

Commerce Commission

Plaintiff

and

Singapore Airlines Limited & Singapore Airlines Cargo Pte Limited

Defendants

And Between

Commerce Commission

Plaintiff

and

Thai Airways International Public Company Limited

Defendant

[2012] NZHC 271

CIV-2008-404-008352

CIV-2008-404-008357

CIV-2008-404-008349

CIV-2008-404-008348

CIV-2008-404-008351

CIV-2008-404-008350

CIV-2008-404-008356

CIV-2008-404-008354

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

Application by non-parties to search court file — proceedings related to alleged fixing of elements of prices for air cargo services to NZ — applicants (international freight forwarders) believed they might have suffered loss as result, so sought documents from court file — much of information on file was commercially sensitive information provided voluntarily by parties and another non-party (competitor of applicants) who were co-operating with the Commerce Commission's investigation — Commission requested restricted access only be granted — defendants opposed all access — whether there was a presumption in favour of accessibility under r3.16 High Court Rules (matters to be taken into account) — whether the principle of open justice was paramount under r3.16 — whether allowing access to file would be contrary to orderly and fair administration of justice by discouraging future co-operation.

Counsel:

P Collins for Schenker

P Barratt for DHL

H Wallwork and K Rusbatch for Plaintiff

S JP Ladd and C Milne for Air New Zealand

AN Birkinshaw for Emirates

DS Alderslade for Japan Airlines International Co Ltd

G Holm-Hansen for Korean Air Lines Co Ltd

JL Land and A Pope for Malaysian Airlines System Berhad Ltd

KJ Dobbs for Singapore Airlines Ltd & Singapore Airlines Cargo Pte Ltd

JUDGMENT OF Asher J

(Application to search court file by Schenker)

Table of Contents

	Para No
Introduction	[1]
Position of parties to this application	[4]
The statement of facts for the stage one hearing	[11]
The relevant rules	[15]
Approach adopted	[26]
This application	[30]
The freedom to seek, receive and impart information	[33]
The orderly and fair administration of justice	[38]
The protection of confidential or commercially sensitive and privacy interests	[42]
Other matters	[47]
Conclusion	[49]
Result	[52]
Costs	[53]

Introduction

1 Schenker AG and Schenker (NZ) Ltd (collectively “Schenker”) who are nonparties to these proceedings, request access to the documents that have been filed by the parties. The request is opposed by the present defendant airlines, and at least one former party, Qantas Airways Ltd (“Qantas”). Another non-party, DHL Global Forwarding (New Zealand) Ltd (“DHL”), also opposes. The plaintiff, the Commerce Commission, does not oppose Schenker's request but asks that access not be granted to certain particular documents. Qantas filed a submission but did not appear, but the Commerce Commission, although abiding the decision of the Court in relation to the defendant airlines' opposition, filed detailed submissions.

2 The request arises in the course of the Commerce Commission's claim against the defendant airlines that they, along with others, fixed elements of the prices of in-bound and out-bound air cargo services to New Zealand. The proceeding is at present part-heard. There has been a stage one hearing concerned with issues relating to whether there was a market in New Zealand for in-bound air cargo services. The stage one decision determined amongst other things that there is a market in New Zealand for air cargo services from an overseas country or region to New Zealand.

3 There will be a stage two hearing which will consider the remaining issues, and in particular whether the defendant airlines did enter into arrangements to impose fuel and security surcharges at certain agreed rates. That hearing starts in February 2013. The parties are at present attempting to do discovery and prepare evidence.

Position of parties to this application

4 Schenker is one of the world's largest freight forwarders. As an international freight forwarder, it is and has been involved in freight forwarding contracts with the defendant airlines. In its letter of request of 20 July 2011, Schenker's lawyers assert that Schenker “may have suffered loss as a result of the alleged conduct in these proceedings”. This is the sole reason put forward for the request. Schenker requests:

• 2.1 a copy of any minute of the Court regarding the issues to be determined in these proceedings;

• 2.2 the pleadings, including the statements of claim, statements of defence, any amended statements of claim, any amended statements of defence, the parties' opening and closing submissions, and documents handed up, including any “issues list” and/or illustrative guides;

• 2.3 the affidavits, briefs of evidence, and any summaries of these documents;

• 2.4 the agreed bundle of documents;

• 2.5 the agreed statement of facts, including all schedules; and

• 2.6 a copy of the Court transcript.

5 The Commerce Commission elected to discontinue claims against six current and former Air New Zealand executives. In Minute (No. 14) 1 I directed that documents referring to those individuals by name or position not be accessed by anyone other than a party to the proceedings. Schenker submits that this Minute should not operate as a blanket suppression of all documents which include reference to the individual airline executives, but that they should be suppressed only to the extent that any references to the individual airline executives are redacted.

6 Mr Collins for Schenker relies in particular on what he termed to be a rebuttable presumption of disclosure or a “presumption of accessibility”. According to Mr Collins this was a consequence of open justice now being the paramount consideration.

7 The Commerce Commission also accepts that the relevant High Court Rules starting at r 3.9, have effectively created a presumption in favour of access by nonparties to Court files. However, the Commission requests restricted access reflecting the fact that it received information from non-party freight forwarders, exporters and importers that were not parties to the proceeding and who co-operated with the Commission. It accepts that this was commercially sensitive information given voluntarily, and that this information should not be accessed. It submits that r 3.9(3) enables Judges to restrict access to certain documents.

8 The defendant airlines take issue with the basic premise relied on by Schenker. They submit that the Court must consider a number of factors including open justice, and that none of the factors has any particular priority. The Court, it submits, must carry out a balancing exercise between the interests of the parties trying to prevent or restrict access to documents on the Court file in the interests of the parties seeking access.

9 Mr Land for the Airlines submits that the reason put forward for access, namely, that Schenker has suffered loss and there may be possible claims, is not a justification for access. He submits that the documents sought will not assist Schenker in achieving its stated purpose. He argues that a number of the documents, in particular the summary of facts and schedules, were prepared for the New Zealand air cargo proceedings for the purpose of achieving an efficient hearing. An order for disclosure to a third party will deter such co-operation in the future. He submits that some of the information is commercially sensitive and confidential.

10 DHL is part of the DHL Group and is one of the world's largest freight forwarders and the largest single forwarder in New Zealand. It is not a party to the proceedings but voluntarily provided information to the parties which is contained in the agreed statement of facts and schedules. It states that the information it provided was never intended to become public and that it would not provide voluntary assistance again if it was to find that its commercial interests will, or might be, prejudiced by doing so. Schenker is DHL's most significant competitor and DHL believes that the granting of the orders will give Schenker access to information about key clients, freight calculations, margins, freight volumes and similar confidential material.

The statement of facts for the stage one hearing

11 On 4 May 2011, as part of the process of preparing and presenting the evidence for the stage one hearing and prior to its commencement, the parties filed a joint memorandum concerning the statement of facts, agreed bundle of documents and market issues, which has been commonly referred to “the protocol”. The protocol set out the parties' agreement to the status of a statement of facts and schedules, the status of the agreed bundle of documents and certain market issues.

12 These were significant documents containing many hundreds of pages of detailed information. The protocol provides: 2

The statement of facts has been prepared for the purpose of the New Zealand air cargo proceedings only and the statement of facts is not binding against, and does not constitute an admission by, any of the defendants in the other proceedings...