Schenker AG and Schenker (NZ) Ltd v Commerce Commission

• Jurisdiction: New Zealand
• Judge: Priestley J
• Judgment Date: 17 April 2013
• Neutral Citation: [2013] NZCA 114
• Docket Number: CA162/2012
• Court: Court of Appeal
• Date: 17 April 2013

Between

Schenker AG and Schenker (NZ) Limited

Appellants

and

Commerce Commission

First Respondent

and

Air New Zealand Limited

Second Respondent

and

Cathay Pacific Airways Limited

Third Respondent

and

Emirates

Fourth Respondent

and

Japan Airlines International Co Limited

Fifth Respondent

and

Korean Airlines Co Limited

Sixth Respondent

and

Malaysian Airline System Berhad Limited

Seventh Respondent

and

Singapore Airlines Limited and Singapore Airlines Cargo Pte Ltd

Ninth Respondent

and

Qantas Airways Limited

Tenth Respondent

and

British Airways Plc

Eleventh Respondent

[2013] NZCA 114

Court:

Harrison, White and Priestley JJ

CA162/2012

IN THE COURT OF APPEAL OF NEW ZEALAND

Appeal from High Court (“HC”) decision denying appellants, as non-parties, access to documents on a HC civil proceeding file — proceeding initiated by Commerce Commission under the Commerce Act 1986 alleging various airlines had engaged in anti-competitive behaviour by fixing certain elements of the prices of in-bound and out-bound air cargo services for New Zealand — appellants were a large freight forwarder operating on an international basis and had been involved with various of the respondent airlines through freight-forwarding contracts — request made under r3.9(4) High Court Rules (“HCR”) (relating to access to documents during the substantive hearing phase) and r3.11 HCR (access by a person not otherwise eligible) — only reason given was that appellant might have suffered loss as a result of the alleged conduct in the proceedings — r3.9(6) HCR conferred broad discretion on Judge — exercise of discretion informed by r3.16 HCR (matters to be taken into account) — whether Judge correctly approached task under r3.9 and r3.16 HCR.

Counsel:

P N Collins and M Singh for Appellants

J C L Dixon and K Rusbatch for First Respondent

S Ladd and C Milne for Second Respondent

I J Thain for Third Respondent

J L Land and A Pope for Third to Ninth Respondents

P Barratt for DHL Global Forwarding (New Zealand) Ltd (Non-party given leave)

JUDGMENT OF THE COURT

A Appeal dismissed.

B Costs for a standard appeal on a band B basis are awarded to the first and second respondents and to DHL. An additional set of costs is awarded on the same basis to the seven respondents for whom Mr Land appeared. In each case we certify for one counsel only.

REASONS OF THE COURT

(Given by Priestley J)

Introduction

1 This appeal raises the important issue of what requirements a non-party to a civil proceeding must satisfy to obtain access to documents on a High Court civil proceeding file.

2 We state the obvious at the outset. The fate of each application will ultimately depend on its context. To what documents is access sought? Why? What is the nature of the proceeding? What particular interests and factors must be weighed? For each access request these inquiries will inevitably differ.

3 The appellants, Schenker AG and Schenker (NZ) Ltd, were collectively a non-party to a proceeding initiated in the High Court by the Commerce Commission (the first respondent) under the Commerce Act 1986. The Commission alleged that various airlines 1 had engaged in anti-competitive behaviour by fixing certain elements of the prices of in-bound and out-bound air cargo services for New Zealand. 2

4 Schenker is a large freight forwarder which operates on an international basis and has been involved with various of the respondent airlines through freight-forwarding contracts. In July 2011 Schenker's solicitors made a request for access to the High Court file. 3 In a judgment released on 24 February 2012 Asher J declined the request. 4 This appeal challenges that judgment. 5

The request

5 Schenker lodged requests in July 2011 with the Registrar of the High Court at Auckland under r 3.9(4) of the High Court Rules (relating to access to documents during the substantive hearing phase) and under r 3.11 (for access by a person not otherwise eligible). Both applications were effectively in identical terms.

6 The only reason advanced in the letters of request was that Schenker “may have suffered loss as a result of the alleged conduct in these proceedings”. There was no further amplification or detail about what Schenker's interest in the court documents might be. The request did, however, specify what documents Schenker wanted to access. These were:

• (a) Copies of any minutes of the Court relating to issues.

• (b) All the pleadings including the parties' opening and closing submissions and handed up documents, including “issues lists” and “illustrative guides”.

• (c) All affidavits, briefs of evidence, and any summaries of those documents.

• (d) The agreed bundle of documents.

• (e) The agreed statement of facts, including all schedules.

• (f) A copy of the Court's transcript.

7 In short, on the basis that the alleged conduct of the parties against whom the Commerce Commission was making a claim may have resulted in some loss to it, Schenker considered it should effectively have access to all the documents which had been before the Judge in the proceeding.

8 Mr Collins accepted in his submissions there was no evidence pointing to any other reason. He submitted that possibly the documents might be relevant to contemplated parallel litigation. But the type of litigation and its forum was not a matter on which Mr Collins could assist us.

9 Schenker's request was opposed which led to it being dealt with under subpart 2 of Part 3 of the High Court Rules to which we now turn.

Relevant Rules

10 The Rules set out a clear process which applies to applications by non-parties who wish to obtain access to documents on a court file. 6

11 Rule 3.5 defines the key terms of “access”, “court file”, and “document”. There was no dispute over the applicability of these terms so we need not dwell on them. Suffice to say that “access” includes copying, which is what Schenker had in mind, and that “document” is broadly defined as “any written material in the custody or control of the court that relates to a proceeding”. The definition extends to

interlocutory applications and includes documentary exhibits, video recordings, other images, and records in electronic form

12 Rule 3.9 sets out the mechanism for an access request. It provides:

3.9 Access to documents during substantive hearing stage

• (1) This rule applies during the hearing of a proceeding (other than the hearing of an interlocutory application) and until—

  • (a) the close of the 20th working day after the court has given the final judgment on the proceeding; or

  • (b) the discontinuance of the proceeding before the final judgment is given.

• (2) During the period to which this rule applies, any person may access any of the following documents relating to the proceeding:

  • (a) any pleading, reference, notice, or application filed in the court:

  • (b) affidavits, depositions, or other written statements admitted into evidence for the purposes of the hearing:

  • (c) documents admitted into evidence for the purposes of the hearing:

  • (d) if any evidence given orally at the hearing has been transcribed, a transcript of that evidence.

• (3) Despite subclause (2), a Judge may, on his or her initiative or on request, direct that any document, or part of a document, relating to the proceeding not be accessed without the permission of a Judge.

• (4) A request for access to a document under this rule is made informally to the Registrar by letter that—

  • (a) identifies the requested document; and

  • (b) gives the reasons for the request.

• (5) The following provisions apply when a request for access to a document is made under subclause (4):

  • (a) the Registrar must promptly give the parties or their counsel a copy of the request:

  • (b) a party who wishes to object must, before the relevant deadline (within the meaning of rule 3.10), give written notice of the objection to the Registrar, to the person who made the request, and to the other parties or their counsel:

  • (c) on receipt of an objection, the Registrar must promptly refer the objection and the request to the Judge for determination:

  • (d) unless the document is subject to a restriction stated in subclause (3) or in rule 3.12, the Registrar must promptly give the person who made the request access to the document—

    • (i) if the Registrar receives no objection before the expiry of the relevant deadline (within the meaning of rule 3.10); or

    • (ii) if the parties or their counsel earlier agree that the person be given access to the document:

  • (e) every request that relates to a document that is subject to a restriction stated in subclause (3) or in rule 3.12 is taken to be a request for the permission of a Judge, and must be promptly referred to the Judge by the Registrar.

• (6) The Judge may determine an objection referred to the Judge under subclause (5)(c) or a request for permission under subclause (3) or (5)(e) in any manner the Judge considers just.

• (7) For the purposes of subclause 2(b) and (c), “admitted into evidence” does not include evidence admitted provisionally.

13 Unless subcl (3) applies and access is dependent on a Judge's permission, the initial request, which can be informal, must be made under subcl (4). This subclause is clearly the gateway through which “any person” must enter to exercise the broadly cast right to access set out in subcl (2).

14 Subclause (5) sets out relevant time periods. Parties must be notified of the request. There is a “relevant deadline” within which a party must give written notice of an objection. 7 If no objection is received, the Registrar must, under r 3.9(5)(d), give prompt access to the person making the request. If an objection is made, however, the request for permission must be referred to the Judge. Rule 3.9(6) confers on the Judge a broad discretion to determine both objections and requests in a manner which is considered “just”. However, the exercise of...