Commerce Commission v Air New Zealand Limited fixture HC Auckland CIV-2008-404-008352

[2011] NZHC 1502

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2008-404-008352

BETWEEN  COMMERCE COMMISSION Plaintiff

ANDAIR NEW ZEALAND LIMITED Defendant

CIV-2008-404-008348

AND BETWEEN            COMMERCE COMMISSION Plaintiff

ANDJAPAN AIRLINES INTERNATIONAL CO LIMITED

Defendant

CIV-2008-404-008349

AND BETWEEN            COMMERCE COMMISSION Plaintiff

ANDEMIRATES Defendant

CIV-2008-404-008350

AND BETWEEN            COMMERCE COMMISSION Plaintiff

ANDMALAYSIAN AIRLINES SYSTEM BERHAD LIMITED

Defendant

CIV-2008-404-008351

AND BETWEEN            COMMERCE COMMISSION Plaintiff

COMMERCE COMMISSION V AIR NEW ZEALAND LTD HC AK CIV-2008-404-008352 3 November 2011

ANDKOREAN AIR LINES CO LIMITED Defendant

CIV-2008-404-008354

AND BETWEEN            COMMERCE COMMISSION Plaintiff

ANDTHAI AIRWAYS INTERNATIONAL PUBLIC COMPANY LIMITED Defendant

CIV-2008-404-008356

AND BETWEEN            COMMERCE COMMISSION Plaintiff

ANDSINGAPORE AIRLINES LIMITED & SINGAPORE AIRLINES CARGO PTE LIMITED

Defendants

CIV-2008-404-008357

AND BETWEEN            COMMERCE COMMISSION Plaintiff

ANDCATHAY PACIFIC AIRWAYS LIMITED Defendant

Hearing:         27 October 2011

Counsel:         BWF Brown QC, JCL Dixon, KC Francis and LCA Farmer for

Plaintiff
AR Galbraith QC, DJ Cooper and SJP Ladd for Air New Zealand
JA Farmer QC and IJ Thain for Cathay Pacific
MR Dean QC, GW Hall and AN Birkinshaw for Emirates
DS Alderslade, JWJ Graham and RM Irvine-Shanks for Japan Airlines
AM Callinan and AE Murray for Korean Airlines
JL Land and I-RL Sheerin for Malaysia Airlines
MD O'Brien, JH Stevens and KJ Dobbs for Singapore Airlines
TC Weston QC, AW Lear and MW McCarthy for Thai Airways

Judgment:      3 November 2011

JUDGMENT OF ASHER J

(Re:  Fixture for stage two hearing)

This judgment was delivered by me on Thursday, 3 November 2011 at 4.45pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

[1]      I have set the second stage of the trial of this proceeding down to start on Monday, 11 February 2013 after a half day hearing alongside which I heard another application.    It  was  necessary to  do  so  without  reasons  given the  hearing time available.  I now set out my reasons.

[2]      In Minute (No.2) of 6 May 2010, Harrison J directed that the second stage of the trial would commence on a date to be fixed in July or August 2012.  The then estimated duration was four months.  Since then no firm fixture has been allocated, but the stage one  hearing proceeded  as  anticipated in  the middle of 2011  with judgment issuing on 24 August 2011.

[3]      Both the plaintiff the Commerce Commission (“the Commission”) and the defendant airlines (“the airlines”) accept that it is not practicable to commence in July or August 2012.  There is too much to do.  However, the Commission wishes the trial to commence at the beginning of October 2012, some two to three months late.  The airlines on the other hand submit that that will be too early.  They seek a start date in February 2013.

[4]      Mr  Brown  QC  for  the  Commission  proposed  a  timetable  with  lists  of documents being exchanged in April 2012.  He accepted that there had been slippage

in the anticipated exchange of lists of documents, which was to have taken place before the first stage of the trial.  He submitted, however, that an October 2012 date was practical.

[5]      Messrs Farmer QC, Galbraith QC and O’Brien and Ms Dean QC for the airlines, supported by other counsel, strongly submitted that the airlines could not be ready in time.  In particular they emphasised the quantity of the relevant documents. The Commission had identified approximately 16,500 documents.   From the perspective of Air New Zealand Ltd, whom Mr Galbraith represented, there were

357,000 documents that had been identified that might be relevant.   These would have to be considered and the discoverable documents listed.  It was also pointed out that the process of discovery was made more complex by the fact that there were eight different airlines, all of whom would wish to carry out inspection of the others’ documents.     The  process   of  assimilating  and   understanding  the  discovered documents would take some considerable time.

[6]      Ms Dean for Emirates referred to the fact that amendments to the pleadings were likely and there was a great deal of work still to be done to define the issues. There were witnesses to be interviewed in places such as India and Dubai, whose first language was not English.  The bundle of documents was likely to be very large and counsel would like to have the Christmas break before a February 2013 start in which to familiarise themselves with that bundle and prepare for the hearing.

[7]      All counsel for the airlines emphasised that to fix a fixture for October 2012 would  be  unrealistic  and  an  adjournment  would  be  forced  once  the  practical problems became apparent.

[8]      I am persuaded by the airlines’ arguments. Although the Court is able to offer a fixture in October 2012, it should not force unrealistic deadlines on parties.  I am satisfied that the assessment of the airlines as to the work involved is made in good faith and must be respected.   I am satisfied that to force an October 2012 fixture could ultimately cause extra expense and delay in the likely event that there is an adjournment.  I am particularly influenced by the fact that discovery will be a huge task.   I note that the issues are still a matter of considerable debate between the

parties and a great deal of work has to be done in that regard.  I also accept the need to allow for a reasonable period of time for counsel to work through the bundle of documents and prepare.

[9]      The fixture of stage two of this trial will therefore commence on Monday,

11 February 2013.  The Commission estimates a four month duration and the airlines a six month duration.  Provision should be made for a six month hearing, although I expect that the parties will work together to agree issues and facts to reduce the duration of the hearing in the months ahead.

[10]     The parties have agreed on a draft timetable on the contingency of a fixture starting in February 2013, indicating certain areas that remain the subject of disagreement.  I direct accordingly:

Event	Date
Defendants to serve any request for further (not previously requested) particulars of statement of claim.	4 November 2011
Plaintiff to serve any notices to admit and identify any requests for particulars of statements of defence.	18 November 2011
Parties to have addressed and if possible agreed indicative scope of a process for discovery (NB: This is indicative in the sense it may be able to be further refined pending notices to admit/particulars issues).	18 November 2011
Plaintiff to file and serve any proposed amendments to the statements of claim (and seek leave to make them   if   necessary)   [5ASOC],   and   include   or otherwise respond to any requested particulars.	25 November 2011
Parties to have made any application as to scope of discovery (if no adequate agreement reached).	2 December 2011
Defendants   to   file   and   serve   defences   to   any amended claim, and include or otherwise respond to the requested particulars, and make any requests for further particulars (arising from the 5ASOC amendments only) of the statement of claim.	21 December 2011

Defendants to respond to notices to admit

25 January 2012

Plaintiff to reply to defences to 5ASOC

31 January 2012

Plaintiff   to   respond   to   any  request   for   further particulars  of  statements  of  claim  (arising  from

5ASOC).

31 January 2012

Parties to file any applications in relation to pleading or particulars (which may include particulars previously requested but not provided).

14 February 2012

Case management conference

mid-March 2012

Plaintiff and defendants to serve lists of documents for discovery (and make documents available for inspection by efficient electronic means).

5 April 20112

Any applications arising from discovery (including any applications for non-party discovery) to be made.

4 May 2012

Parties to file any initial applications re trial format/procedure (eg whether hub-by-hub trial) (but without precluding later applications).

14 May 2012

Any further notices to admit to be served and any limited interrogatories to be filed and served.

21 May 2012

Case management conference

early June 2012

Replies to any further notices to admit to be served and replies to any limited interrogatories to be filed and served.

21 June 2012

Any final amendments to the statements of claim are to be made, and filed and served (with leave if necessary).

6 July 2012

Any final amendments to the statements of defence are to be made and filed and served (with leave if necessary).

27 July 2012

Plaintiff to reply to final amendments to statements of defence.

10 August 2012

Plaintiff  to  serve  all  briefs  of  evidence  and  its nominations for the agreed bundle of documents.

17 August 2012

Case management conference

September 2012

Defendants to serve briefs of evidence and each of their  nominations  for  the  agreed  bundle  of documents.	16 November 2012
Plaintiff to serve any reply briefs (in respect of affirmative defences only) (NB: scope of reply evidence is not yet agreed).	14 December 2012
Case management conference.	17-18 December 2012
Plaintiff to provide the agreed bundle of documents (indexed and paginated).	21 December 2012
Plaintiff to file and serve opening submissions	[to be agreed]
Defendants to file [mini] openings (NB: scope and provision depends upon manner in which trial is to proceed).	[to be agreed]
Trial commences	11 February 2013

[11]     It is to be noted that the date for providing the agreed bundle of documents is provisional.   The airlines do not accept that the 21 December 2012 date for the bundle of documents is realistic and are concerned that it leaves insufficient time for the parties to familiarise themselves with the bundle.   The parties have agreed to discuss this issue and to endeavour to reach agreement on an appropriate date.  The parties have liberty to apply for further directions on the bundle of documents.

[12]     I would be grateful if the Court would make case management conference dates available as proposed in mid-March 2012, early June 2012, September 2012 and 17-18 December 2012.

[13]     A case management conference should be allocated for 9am on a date in mid- December 2011.  If a party considers that a hearing with counsel present is required, a memorandum should be filed to that effect for my attention, and a fixture will be allocated.

Costs

[14]     The setting of this fixture date has involved give and take on the part of both sides and I do not consider it appropriate to make an order for costs in favour of any party. Costs will lie where they fall.

……………………………..

Asher J

Solicitors/Counsel:
Meredith Connell (Auckland) for Commerce Commission
Bell Gully (Auckland/Wellington) for Air New Zealand & Singapore Airlines
Chapman Tripp (Auckland) for Japan Airlines

Buddle Findlay (Auckland) for Emirates

Kensington Swan (Auckland) for Malaysian Airlines Simpson Grierson (Auckland) for Korean Air Lines Lowndes Associates (Auckland) for Thai Airways DLA Phillips Fox (Auckland) for Cathay Pacific

BWF Brown QC; MR Dean QC; JA Farmer QC; AR Galbraith QC; TC Weston QC; AW Lear