Schenker AG and Schenker (NZ) Ltd v The Commerce Commission

• Jurisdiction: New Zealand
• Judge: Miller J
• Judgment Date: 14 June 2012
• Neutral Citation: [2012] NZCA 245
• Docket Number: CA162/2012
• Court: Court of Appeal
• Date: 14 June 2012

Between

Schenker AG and Schenker (NZ) Limited

Appellants

and

The 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 & Singapore Airlines Cargo Pte Limited

Eighth Respondent

and

Thai Airways International Public Company Limited

Ninth Respondent

and

Qantas Airways Limited

Tenth Respondent

and

British Airways Plc

Eleventh Respondent

[2012] NZCA 245

Court:

O'Regan P, Wild and Miller JJ

CA162/2012

IN THE COURT OF APPEAL OF NEW ZEALAND

Appeal from High Court (“HC”) ruling that an appealed decision was an interlocutory decision in proceedings entered on the commercial list and consequently leave had to be obtained under s24G Judicature Act 1908 (“JA”) (restriction of right of appeal from interlocutory decisions) — HC dismissed non-party application to inspect and copy HC files including pleadings and evidence — non-party wished to appeal decision — whether, leave not having been sought, the Court of Appeal (“CA”) had jurisdiction to entertain the appeal — meaning of “interlocutory decision”.

Counsel:

P N Collins for Appellants

J L Land for Second to Ninth Respondents

A The second to ninth respondents' challenge to the Court's jurisdiction to hear the appeal is dismissed.

B Costs are reserved.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Miller J)

Introduction

1 The Commerce Commission brought proceedings against the respondent airlines, alleging that they and others fixed prices of international air cargo services. The airlines were sued separately, and the proceedings were all entered on the commercial list at Auckland. Those against the tenth and eleventh respondents ended in judgment. The trial of those against the other respondents is to resume in February 2013.

2 The present appellants, whom we will call Schenker, are not parties to any of the proceedings. They are freight forwarders who say they “may have suffered loss as a result of the alleged conduct” in the proceedings. They seek evidence. They want to inspect and copy the High Court files, including pleadings and evidence and the agreed bundle of documents.

3 Schenker applied by letter to the Registrar of the High Court at Auckland for directions under High Court Rules 3.9 and 3.13 allowing them to access the files. The application was referred to the parties, who objected, so a hearing was held before Asher J, who is a commercial list Judge and also the trial Judge. The Judge dismissed Schenker's application in a judgment dated 24 February 2012. 1

4 Schenker filed an appeal which met with the response that, because the judgment was an interlocutory decision in proceedings entered on the commercial list, leave must first be obtained under s 24G of the Judicature Act 1908.

5 This judgment answers the preliminary question whether, leave having not been sought, this Court has jurisdiction to entertain the appeal. The answer turns on the meaning of “interlocutory decision” in s 24G.

Appeals from interlocutory decisions in commercial list proceedings

6 We begin by outlining the relevant provisions of the Judicature Act and High Court Rules. Appeals from interlocutory decisions of the High Court are normally brought as of right, although this Court may refuse to hear them before trial. 2 But appeals from interlocutory decisions in proceedings entered on the commercial list are exceptional. The Judicature Act proves that they need leave of the High Court or, if leave is refused there, this Court:

24G Restriction of right of appeal from interlocutory decisions

(1) No appeal shall lie from an interlocutory decision of the High Court in respect of any proceeding entered on a commercial list unless leave to appeal to the Court of Appeal is given by the High Court on application made within 7 days of the decision being given or within such further time as the High Court may allow.

(2) If the High Court refuses leave to appeal from any such interlocutory decision, the Court of Appeal may grant that leave on application made to the Court of Appeal within 21 days of the refusal of leave by the High Court.

(emphasis added).

7 “Interlocutory decision” is nowhere defined, but the Act and the High Court Rules each define an “interlocutory application”: the Act as follows: 3

interlocutory application —

• (a) means any application to the Court in any civil proceedings or criminal proceedings or intended civil proceedings or intended criminal proceedings for an order or a direction relating to a matter of procedure or, in the case of civil proceedings, for some relief ancillary to that claimed in a pleading; and

• (b) includes an application for a new trial; and

• (c) includes an application to review an order made, or a direction given, on any application to which paragraph (a) or paragraph (b) of this definition applies.

8 The rules provide that an interlocutory application is made in accordance with r 7.19, which prescribes the form that such applications must take. 4 An application must state the relief sought and the grounds justifying that relief. 5

9 The rules also define “interlocutory order”, in language corresponding closely to the Act's definition of interlocutory application: 6

interlocutory order —

• (a) means an order or a direction of the court that—

  • (i) is made or given for the purposes of a proceeding or an intended proceeding; and

  • (ii) concerns a matter of procedure or grants some relief ancillary to that claimed in a pleading; and

• (b) includes—

  • (i) an order for a new trial; and

  • (ii) an order striking out the whole or part of a pleading; and

  • (iii) an order varying or rescinding an interlocutory order.

10 This Court has observed that “interlocutory rulings” fall into at least three categories. 7 The three categories identified all deal in one way or another with the progress or result of the substantive proceeding in which the rulings are made:

[18] Broadly speaking, interlocutory rulings (to use a neutral word) fall into at least three categories: those that determine or affect the rights or liabilities which are in issue, that is the merits; those that decide the shape of the substantive proceedings; and those ancillary but important rulings on times and procedures. That classification corresponds broadly with the categories noted by Donaldson MR in Bland v Chief Supplementary Benefit Officer at p266 – decisions determining a matter in dispute; “possibly an order determining how the matter shall be determined – the ordinary interlocutory procedure order which is made in any form of legal proceedings”; and the grant or refusal of a permission “which determines nothing at all”.

Access to High Court files for civil proceedings

11 Anyone may inspect the formal court record, which comprises registers, notices of hearing and judgments and reasons for judgment. 8 There is no general right to access the rest of the court file. The parties may search it without fee under r 3.8, but non-parties must request access under r 3.9 or apply under r 3.13.

12 Schenker invoked r 3.9 for access to the proceedings against the second to ninth respondents. The rule applies during the substantive hearing stage; that is, during the hearing and until the close of the 20th working day after delivery of final judgment. It has been described as the open justice window, during which there is a general right of access. 9 Although the parties are presently preparing for trial — work

which includes preparing evidence — counsel agree that the proceedings are at substantive hearing stage, reasoning that the hearing has begun but stands adjourned part-heard. The hearing was split by consent and the Court has delivered a “stage 1” judgment dealing with jurisdiction. 10 That judgment rested on an agreed statement of facts which is among the documents sought by Schenker. Before Asher J no-one seems to have disputed that r 3.9 applies, and for purposes of this judgment we will assume, without deciding, that it does

13 The rule provides that any person may access specified documents relating to the proceeding concerned and establishes an informal “request for access” procedure:

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...