Air New Zealand Limited v Commerce Commission HC Auckland CIV-2011-404-000802 [2011] NZHC 251 (25 March 2011)

Last Updated: 15 June 2011

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CIV-2011-404-000802}

BETWEEN AIR NEW ZEALAND LIMITED Appellant

AND THE COMMERCE COMMISSION Respondent

CIV-2011-404-000820

AND BETWEEN AUCKLAND INTERNATIONAL AIRPORT LIMITED

Appellant

AND COMMERCE COMMISSION Respondent

CIV-2011-485-000249

AND BETWEEN WELLINGTON INTERNATIONAL AIRPORT LIMITED

Appellant

AND COMMERCE COMMISSION Respondent

CIV-2011-485-000251

AND BETWEEN CHRISTCHURCH INTERNATIONAL AIRPORT LIMITED

Appellant

AND COMMERCE COMMISSION Respondent

Hearing: 24 March 2011

Appearances: J Farmer QC for Air New Zealand Ltd

_{A R Galbraith QC and S Katz for Auckland International Airport Ltd}

AIR NEW ZEALAND LIMITED V THE COMMERCE COMMISSION & ors HC AK CIV-2011-404-000802

25 March 2011

B Brown QC, M T Scholtens QC and D J Boldt for Commerce

Commission

J Hodder SC for Christchurch International Airport

N Wood for Wellington International Airport

Judgment: 25 March 2011

JUDGMENT OF VENNING J

ON APPLICATIONS TO ENTER AND REMOVE PROCEEDINGS FROM

_{THE COMMERCIAL LIST}

This judgment was delivered by me on 25 March 2011 at 2.30 pm, pursuant to Rule 11.5 of the High

Court Rules.

Registrar/Deputy Registrar

Date...............

Solicitors: Webb Henderson, Auckland (M Toner) Russell McVeagh, Auckland (S Katz)

Chapman Tripp, Wellington (J Hodder SC, and N Wood) Commerce Commission, Wellington (R Bernau)

Copy to: J A Farmer QC, Auckland

A R Galbraith QC, Auckland

B Brown QC, Wellington

M T Scholtens QC, Wellington

D J Boldt, Wellington

Introduction

[1] The appellant in each of these cases appeals against the determination of the Commerce Commission in Decision No. 709, the Commerce Act (Specified Airport Services Input Methodologies) dated 22 December 2010. (The airport services appeals).

[2] Air New Zealand Limited (Air NZ) and Auckland International Airport Ltd (AIAL) filed their appeals in the Commercial List at Auckland. Christchurch International Airport Ltd (CIAL) and Wellington International Airport Ltd (WIAL) filed their appeals in the Wellington Registry of the High Court.

[3] Air NZ and AIAL have filed applications to enter the WIAL and CIAL appeals on the Commercial List at Auckland. WIAL, CIAL and the Commerce Commission have filed applications to remove Air NZ and AIAL’s appeals from the Commercial List and for their transfer to the Wellington Registry of this Court.

[4] Apart from the airport services appeals, a number of other appeals and judicial review proceedings against input methodologies determinations made by the Commerce Commission concerning other industries have also been filed in the Wellington Registry. These other proceedings (totalling 13 in all) fall into three other categories:

(a) Transpower appeal;

(b) Electricity industry appeals; and

(c) Gas industry appeals.

(The electricity and gas services appeals).

[5] Powerco Ltd, an appellant in one of the electricity and gas industry appeals, has filed a memorandum seeking to reserve its position in relation to these appeals. Vector Ltd, another appellant in the electricity and gas services appeals, has also

filed a memorandum for the purposes of this hearing. It confirms that it is neutral as to where the airport appeals are heard. It says its concern that the tribunal hearing its appeals could be influenced by arguments or the judgment in the airport services appeals could be mitigated by separate tribunals hearing the various appeals.

Matters of agreement

[6] All the appellants to the airport services appeals agree:

(a) the airport services appeals should be heard together;

(b) the airport services appeals should be heard separately to the electricity and gas services appeals;

(c) the airport services appeals could be dealt with within two to three weeks of hearing time (counsel are available in July);

(d) once the issue of venue is resolved the airport services appeals should be case managed, heard and a decision delivered as soon as reasonably possible and in advance of the gas and electricity appeals;

(e) the airport services appeals should be heard by a differently constituted tribunal to that hearing the electricity and gas services appeals.

[7] Mr Brown confirmed the Commerce Commission is happy to support (a) – (d) (it considers three weeks will be required) but supports all the input methodology appeals being heard by the same tribunal.

The issue

[8] For the airport services appeals to be heard together either the Air NZ and

AIAL appeals filed in the Commercial List will have to be removed from the

Commercial List and transferred to Wellington or the CIAL and WIAL appeals filed in Wellington will have to be removed from Wellington to the Commercial List.

[9] The applications fall to be determined by the Court’s assessment of whether the just, speedy and efficient determination of the airport services appeals will best be achieved by management of the appeals in the Commercial List in Auckland or by case management by an assigned Judge in Wellington.

[10] Where a proceeding can be assigned to a Judge for management through interlocutory stages to trial, the Commercial List may not offer any particular tangible advantages.[1] There is no onus on either side in respect of the applications. The exercise is essentially a balancing one which does not involve a burden on either side.[2]

The Registry positions

[11] In anticipation of these appeals being filed administrative arrangements were made in the Wellington Registry for the allocation of a Judge, Clifford J to case manage the input methodology appeals to hearing and for a venue (the former No. 1

Supreme Court) to be made available. If the parties can be ready the airport services appeals could be heard in the third quarter 2011 in Wellington.

[12] While it is anticipated Clifford J would manage the input methodologies appeals generally, I understand from his recent minute (No. 4) that he would not be the judicial member for the airport services appeals. It is intended he would hear the electricity and gas services appeals.

[13] In Auckland, while the Commercial List Judges have existing commitments, a Commercial List Judge could be made available to manage the files towards a hearing whether or not that Judge ultimately heard the appeal. A courtroom could

_{also be made available in the third quarter for a two to three week hearing.}

[14] Air NZ submits that appeals of this nature have been accepted as quintessentially proceedings of a character for which the Commercial List was intended to cater: Commerce Commission v Cards NZ Ltd & Ors.[3] They are expressly provided for by High Court Rule 29.5 and under ss 24B(1)(c) and

24B(1)(g) of the Judicature Act 1908. Air NZ and AIAL are also entitled to apply for the entry of the proceedings filed in Wellington in the Commercial List: High Court Rule 29.5(3) and (4).

[15] There is need for a prompt resolution of the appeals. The input methodologies apply pending the outcome of the appeals.[4] The Commercial List will provide not only active case management of the appeals but also the parties will have access to a larger pool of Judges in Auckland.

[16] AIAL submits that the suggested benefit of the management of all the input methodology appeals under one Judge’s direction will be largely illusory, particularly if the case management of the airport services appeals becomes inextricably intertwined (the entanglement issue) with the case management of the gas and electricity appeals. Such an outcome would lead to unnecessary delay and cost.

[17] Further, AIAL submits any potential efficiencies by having one Judge case manage all appeals (even if not sitting on all appeals) will be limited. The combined case management of all input methodology appeals would necessarily involve the Commission and all 17 appellants.

[18] AIAL submits that the parties to the electricity and gas appeals are likely to have different views to the appellants to the airport services appeals on:

_{the case management of the files themselves;}