Commerce Commission v Air New Zealand Ltd (No 6)
[2012] NZHC 2113
•20 August 2012
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2008-404-008352 [2012] NZHC 2113
BETWEEN COMMERCE COMMISSION Plaintiff
ANDAIR NEW ZEALAND LTD Defendant
CIV-2008-404-008350
AND BETWEEN COMMERCE COMMISSION Plaintiff
ANDMALAYSIAN AIRLINE SYSTEM BERHAD LTD
Defendant
CIV-2008-404-008354
AND BETWEEN COMMERCE COMMISSION Plaintiff
ANDTHAI AIRWAYS INTERNATIONAL PUBLIC CO LTD
Defendant
CIV-2008-404-008356
AND BETWEEN COMMERCE COMMISSION Plaintiff
ANDSINGAPORE AIRLINES LTD & SINGAPORE AIRLINES CARGO PTE LTD
Defendants
CIV-2008-404-008357
COMMERCE COMMISSION V AIR NEW ZEALAND LTD HC AK CIV-2008-404-008352 [20 August 2012]
AND BETWEEN COMMERCE COMMISSION Plaintiff
ANDCATHAY PACIFIC AIRWAYS LTD Defendant
Hearing: 8 August 2012
Counsel: BWF Brown QC, JCL Dixon and LCA Farmer for Plaintiff
SJP Ladd for Air New Zealand
IJ Thain for Cathay Pacific
JL Land for Malaysian Airlines
MD O'Brien and JH Stevens for Singapore Airlines
TC Weston QC and AW Lear for Thai Airways
Judgment: 20 August 2012
JUDGMENT (No 6) OF ASHER J (Interrogatories)
This judgment was delivered by me on Monday, 20 August 2012 at 5pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors/Counsel:
Meredith Connell (Auckland) for Commerce Commission
Bell Gully (Auckland/Wellington) for Air New Zealand & Singapore AirlinesKensington Swan (Auckland) for Malaysian Airlines Lowndes Associates (Auckland) for Thai Airways DLA Phillips Fox (Auckland) for Cathay Pacific
BWF Brown QC; JA Farmer QC; AR Galbraith QC; TC Weston QC; AW Lear
Table of Contents
Para No
Introduction [1] The application for interrogatories [5] The issues [11] The nature of the questions [14] Specific questions [23] Oppressive questions?
Facts proved by other means? [26]
Speculative questions [29] Questions as to accuracy [33] “Don’t know” answers [35] Work load [40] Timing [50] Particular position of Cathay Pacific [53] Limited interrogatories? [56] Result [58]
Introduction
[1] In this proceeding the Commerce Commission claims that Cathay Pacific Airways Ltd, along with other airlines, fixed fuel and security surcharges at certain agreed rates. The proceeding is at present part-heard. There has been a stage one hearing which determined that there is a market in New Zealand for air cargo services from an overseas country or region to New Zealand. The parties are now preparing for a stage two hearing which will consider the remaining matters. The core issue to be determined is whether the defendant airlines entered into arrangements, understandings or agreements on fuel and security surcharge rates. That hearing is set down to begin in March 2013. It may take as long as four months.
[2] Separate proceedings have been issued against each airline. However, the proceedings are all to be heard together, and most issues have been determined between the Commerce Commission and the airlines acting collectively. A number of the defendant airlines pleaded guilty prior to the first stage hearing, and through the course of this year further airlines have entered guilty pleas. I was informed at the outset of this hearing that Malaysian Airline System Berhad Ltd (“Malaysian”),
the defendant in the still extant proceedings CIV-2008-404-008350, is also in discussions with the Commerce Commission, and with the agreement of both the Commerce Commission and that defendant, the timetable requirements are suspended including any issues in relation to interrogatories. Mr Land for Malaysian did not therefore make submissions in relation to the application for interrogatories, and that application is adjourned.
[3] The remaining airlines against whom the interrogatory orders are sought and who have defended the application are Thai Airways International Public Co Ltd (“Thai Airways”), Singapore Airlines Ltd & Singapore Airlines Cargo Pte Ltd (“Singapore Airlines”), and Cathay Pacific Airways Ltd (“Cathay Pacific”). The other defendant that is still defending the proceedings, Air New Zealand Ltd (“Air New Zealand”), has reached an agreement with the Commerce Commission and by a separate minute I have directed that Air New Zealand answer defined interrogatories, some on 5 October 2012 and others on 2 November 2012. Mr Ladd for Air New Zealand, who like Mr Land appeared at the outset, also did not remain for the hearing, and made the point that the task of preparing answers for Air New Zealand was less than that of the other airlines.
[4] The parties have, in accordance with timetable directions made by consent, undertaken extensive interlocutory processes to date including discovery, and they have been preparing evidence. Briefs are due by the Commerce Commission in September 2012 and by the defendant airlines in December 2012, with experts’ briefs to be provided earlier. Notices to admit facts have been issued and responses have been filed. The purpose of this hearing is to determine an application for interrogatories issued by the Commerce Commission against the three airlines who are active defendants.
The application for interrogatories
[5] The Commission alleges in its statements of claim that the defendants were party to and implemented:
(a) An overarching understanding to fix the price of fuel surcharges on the worldwide networks;
(b)A series of regional agreements entered into in furtherance of that overarching understanding to fix the price of fuel surcharges on outbound shipments from certain points of origin; and
(c) A global agreement to fix the price of security surcharges, following the terrorist attacks in the United States of America in September
2001.
[6] The Commission’s case is that those understandings and agreements, and arrangements as to their implementation, were typically reached and coordinated at meetings of industry associations commonly called “boards of airline representatives”. It is alleged that at those meetings, which occurred frequently through a period of approximately six years, the airlines agreed on adjustments to fuel and security charges. The airlines sought particulars of the meetings and the Commission responded by providing particulars of dates, attendees, airlines, forum and venue. The Commission also provided copies of the relevant minutes to the airlines.
[7] The application seeks orders relating to the three remaining relevant defendants, Thai Airways, Singapore Airlines and Cathay Pacific. They are to file and serve statements in answers to notices of interrogatories dated 29 June 2012. The Commission had filed notices of interrogatories on 29 June 2012 initially requiring the defendants to answer the interrogatories on or before 26 July 2012, but have since somewhat reduced the interrogatories and extended the timeframe. The direction sought is for answers no later than 5pm on 31 August 2012. The questions follow a certain template.
[8] The Commission alleges that the conduct occurred around the world in at least 11 regions or “hubs”. In relation to each of the three relevant defendants there were:
(a) 97 meetings pleaded for Singapore Airlines; (b) 88 meetings pleaded for Thai Airways; and (c) 87 meetings pleaded for Cathay Pacific.
[9] The interrogatories focus on these meetings, and on those parts of the minutes of each meeting concerned with fuel or security charges. The interrogatories ask some general overarching questions which have not been the subject of particular objection by the airlines. The primary focus of the questions are by reference to specific pleadings and minutes, and details are sought of:
(a) the nature of the meeting, including when and where it was held; (b) whether it was attended by a representative of the airline;
(c) what was discussed at the meeting in relation to the relevant issues;
(d)whether minutes were taken of the meeting and if so, whether the airline received a copy of those minutes, and from whom;
(e) whether the airline took any steps to alter or amend any aspect of the meeting minutes; and
(f) whether or not the meeting minutes in relation to the relevant issues were accurate or complete.
It is these to which objection has been made.
[10] The interrogatories are lengthy. In relation to Singapore Airlines they are 59 pages long; in relation to Thai Airways they are 61 pages long; and in relation to Cathay Pacific they are 79 pages long.
The issues
[11] The airlines did not contest the relevance of the subject matter addressed by the questions. The issue of whether agreements, understandings or arrangements were reached at the various meetings lies at the heart of the case, and much of the Commission’s evidence will relate to the meetings where the arrangements were allegedly reached, endeavouring to show that the defendants were party to them.
[12] The objections of the airlines were that the interrogatories were not necessary and were oppressive. It was submitted that the nature of the questions did not meet the requirement that interrogatories relate to matters of fact rather than evidence. Further, it was submitted that they were in breach of, or at least not in the spirit of, the directions that had been previously given, and it was claimed that they imposed an entirely unfair burden on the airlines who were struggling to prepare for the hearing next year. Reference was made by both sides to the fact that there are similar proceedings involving the three airlines that are due to commence in Australia in September of this year. The three airlines are all having to prepare for those proceedings as well.
[13] It is necessary now to consider the objections of the airlines.
The nature of the questions
[14] Rule 8.40(1) provides:
8.40 Objection to answer
(1) A party may object to answer an interrogatory on the following grounds only:
(a) that the interrogatory does not relate to a matter in question between the parties involved in the interrogatories:
(b) that the interrogatory is vexatious or oppressive: (c) that the information sought is privileged:
(d) that the sole object of the interrogatory is to ascertain the names of witnesses.
[15] Rules 8.34 and 8.35 set out how interrogatories are to be provided and served, and r 8.36 sets out various limitations. Rule 8.36 provides that in determining an application the Judge must make any orders required to prevent unnecessary or oppressive interrogatories or unnecessary answers to interrogatories. Interrogatories are not defined in the High Court Rules and their nature and the detail of restrictions on them have been settled by judicial decisions.
[16] It is clear from r 8.40(1)(b) that the Court is bound to consider whether the interrogatories are necessary and not oppressive. It is also clear that the nature and purpose of interrogatories is different from that of pleadings, requests for particulars and notices to admit facts. The purpose of pleadings is to define issues and thereby inform the parties in advance of the case they have to meet.1 The provision of particulars is designed to assist in this process. Interrogatories are designed, in contrast, to elicit material that will help the interrogating parties’ case. It was stated by Buckley LJ in G & W Young and Co Ltd v Scottish Union and National Insurance Co2 that there is:
[A] very plain line of demarcation between interrogatories and particulars. The principle underlying particulars was that they were given in order to make the plaintiff’s case plain, while interrogatories on the other hand were to assist the opposite side and they have nothing to do with particulars.
[17] There are limits on the scope of interrogatory questions, even if relevant. Interrogatories must relate to material facts rather than evidence. The leading statement of the nature is that of Lord Esher in Marriott v Chamberlain:3
The law with regard to interrogatories is now very sweeping. It is not permissible to ask the names of persons merely as being the witnesses whom the other party is going to call, and their names not forming any substantial part of the material facts; and I think we may go so far as to say that it is not permissible to ask what is mere evidence of the facts in dispute, but forms no part of the facts themselves. But with these exceptions it seems to me that pretty nearly anything that is material may now be asked. The right to interrogate is not confined to the facts directly in issue, but extends to any facts the existence or non-existence of which is relevant to the existence or non-existence of the facts directly in issue.
1 Farrell v Secretary of State for Defence [1980] 1 All ER 166 (HL) at 173.
2 G & W Young and Co Ltd v Scottish Union and National Insurance Co (1907) 24 TLR 73 (HC)
at 74.
3 Marriott v Chamberlain (1886) 17 QBD 154 (CA) at 163.
[18] It is therefore a legitimate purpose of interrogatories such as these that they are designed to obtain admissions of facts which will support the case of the interrogating party, the Commerce Commission, or damage the case of the parties interrogated, the airlines.4 “Necessary” does not mean as is suggested in some of the submissions for the defendant airlines, that the questions relate to facts crucial to the interrogating party proving its case. The threshold is not that high. Rather,
necessary questions can include questions that may indirectly prove the key facts relied on. They may establish or form a step in establishing the allegations made.5
[19] The defendant airlines, in particular Mr Thain for Cathay Pacific, argued as a general proposition that these interrogatories related to matters of evidence and not material fact. His submission appeared to go so far as proposing that any questions that related to matters other than those which specifically had to be proven, that is, whether an arrangement, understanding or agreement was reached, were impermissible.
[20] I do not accept that interrogatories have such a narrow ambit. As Mr Brown QC for the Commerce Commission pointed out, oral contracts are only proven by adducing evidence of what the parties said and did, and not by specific questions about whether there was a contract. Indeed, the personal views of a party as to whether a contract was in fact entered into are irrelevant. The test as to what was
agreed or understood is, in contrast, objective.6 Here, it can be expected that
arrangements under s 27 of the Commerce Act 1986 will often be proven by evidence of what the parties said and did rather than evidence of witnesses of what was in fact agreed, arranged and understood by them. The Court’s determination of whether the interrogatory questions are sufficiently germane to the material facts must in the end turn on an analysis of the relevant issues, and the importance of the questions and their degree of connection to the core facts that must be proven.
[21] In this case the Commerce Commission will not be focusing on whether a contract in the legal sense was formed, but rather whether a contract, arrangement or
4 W A Pines Pty Ltd v Bannerman (1980) 30 ALR 559 (FCA) at 574.
5 Shore v Thomas [1949] NZLR 690 (SC) at 695.
6 Boulder Consolidated Ltd v Tangaere [1980] 1 NZLR 560 (CA) at 563; Wilmott v Johnson
[2003] 1 NZLR 649 (CA) at [37]–[40].
understanding under s 27 has been established. It may be able to do so by direct evidence from persons who attended meetings as to what they understood. But it will also seek to rely on documents such as minutes which evidence an arrangement. It was recognised by the Court of Appeal in Giltrap City Ltd v Commerce Commission7 that in determining whether there was an arrangement under the Commerce Act the parties are to be judged not by what was in their minds, but by what their conduct leaves reasonable people to believe was in their minds. It was stated, “[e]xternal appearances govern the inquiry, not undisclosed thoughts”.8 In that case the minutes were recognised as critical in proving whether there was an arrangement reached. Minutes are generally the best evidence of what has occurred at a meeting. They are admissible on that basis against those who have been shown to be present at the meeting as to what they said and did.9
[22] Therefore, questions designed to show that minutes were prepared, and that particular parties received them and had knowledge of them, and accepted them, will be highly material to whether the Commission has proved or not proved its case in relation to a particular alleged arrangement at a particular meeting. They are, in the words of Lord Esher, facts the existence or non-existence of which are directly relevant to a core fact, in this case whether a contract, arrangement or understanding was reached.
Specific questions
[23] It was been observed by the Court of Appeal in Todd Pohokura Ltd v Shell
Exploration NZ Ltd:10
An interrogatory must also, like a question in cross-examination, be precise and unequivocal, and amenable to a direct and meaningful answer from information within the knowledge of or reasonably available to the person required to answer. It must not place unnecessary or burdensome obligations on the interrogated party, or be prolix. And its purpose must not be to search or probe on the speculative basis that an answer may prove relevant (colloquially known as fishing). A question which offends these elements will fall within the general category of oppressiveness.
7 Giltrap City Ltd v Commerce Commission [2004] 1 NZLR 608 (CA) at [19]–[20].
8 At [20].
9 Commerce Commission v Giltrap City Ltd HC Auckland CP88-AS94, 8 September 2001 at [32].
10 Todd Pohokura Ltd v Shell Exploration NZ Ltd [2009] NZCA 561 at [15] and [16].
An interrogatory is an exception to the settled manner of adducing evidence and in particular to a defendant’s right not to call evidence at trial. Accordingly the Court must be satisfied that the interrogatory is necessary where an application to issue interrogatories is opposed: [r 8.38] High Court Rules. A material consideration is whether briefs of evidence will be given by the party to be interrogated. ...
[24] The specific questions relating to the meetings follow the line of first asking whether a particular defendant’s representative attended the meeting, and what was discussed. For the reasons given, those questions are relevant and permissible, relating as they do to what was said between the parties about the surcharges which may prove the key fact of a contract, arrangement or understanding. The questions also as to whether an airline received a copy of the minutes and from whom, and whether the airline took any steps to alter or amend those minutes also fall within the ambit of material facts. For the reasons given, they may assist directly in proving the core fact of the alleged agreement by showing knowledge of the alleged arrangement. A line might be drawn if the questions went further and asked, for instance, about questions of the general practice of the airlines in relation to minutes, but these questions do not go that far.
[25] Given that a regulator is here seeking to prove the existence of contracts, understandings or arrangements at least in part through documentary evidence that it has obtained, the questions are sufficiently germane so as not to offend the requirement that they relate to material facts. Further, insofar as the questions relate to meetings in respect of which there is evidence connecting the particular airline that assist in proving the contract, arrangement or understanding, they can be regarded as “necessary”. I consider the further questions that require confirmation of
the accuracy of the minutes later in this judgment.11
Oppressive questions?
Facts proved by other means
[26] It is clear that the Commerce Commission is not only relying on the documents, but will also be seeking to adduce evidence through some witnesses as to
11 See [33]–[34].
what happened at least in some of the meetings. The airlines suggested that this is the best evidence, and for that reason interrogatories are not necessary. Nevertheless, no party can ever be sure witnesses will come up to brief, particularly in the context of a regulatory proceeding such as this, and it is not illegitimate for a party to try to present the strongest possible case and to, within reason, seek to prove it using all the material and the procedures available.
[27] If the crucial evidence being interrogated was clearly going to become available by other means, for instance, by the provision of briefs at a later point in time, it might be that the interrogatories were not necessary and that they could be seen as oppressive as being a waste of time. But the Commerce Commission is not in this situation. There is no certainty as to what will be admitted or denied by the airlines when their briefs are filed. The airlines may choose to provide no briefs at all and call no evidence, or they may file briefs but still not call the evidence, or the briefs may not in fact cover what happened at the meetings or some of the meetings.
[28] There can be no assurance, therefore, that any of the questions are unnecessary because they refer to material that will be covered by briefs.
Speculative questions
[29] Questions that are speculative and of a fishing nature are not permitted. Where there is evidence that the airlines were at the meetings (by, for instance, reference to the presence of their representatives in the minutes), or where there are references in the minutes to all major airlines or group airlines being present, or the minutes having been sent to a particular airline, it cannot be said that questioning of the airline is speculative. The Commerce Commission has a factual basis for assuming that there is or was some knowledge on the part of the airline about the particular meeting.
[30] Where, however, there is nothing at all to connect the airline, questions of a defendant about that meeting are speculative. The questions proceed on the basis of a wish to check a point, rather than prove a connection that is supported by existing evidence.
[31] Many of the questions do relate to meetings where there is evidence connecting a particular airline to the meeting, but some do not. I was informed that in relation to Thai Airways of the 62 meetings at issue, in 20 there is no record that Thai Airways attended. In those circumstances some of the questions of Thai Airways can be regarded as of a fishing nature and impermissible.
[32] Therefore, in the directions that I will make at the end of this judgment, I will direct that any questions which relate to a meeting where it has not been shown that representative of the defendant airline was present, or that the major or relevant group of airlines were represented, or that the relevant airline was sent or received a copy of the minutes, the defendants do not need to file and serve an answer to that question.
Questions as to accuracy
[33] In relation to each minute the airlines are asked whether they are accurate, or inaccurate, or incomplete. Mr Weston argued that it would be most difficult for anyone to answer a question, even if it related to a single sentence. I accept this submission. Accuracy is often a nuanced issue. Any answer as to the accuracy of a part of the minutes would have to take into account context, both in terms of the prior discussion and the commercial background. A witness, if asked a question about the accuracy of a minute, may wish to introduce and qualify the answer and to make particular reference to context. In the end there would be elements of opinion in the answer. To require a party to answer an interrogatory question about the accuracy of a written statement prepared by others is, in my view, oppressive.
[34] Such questions are very different to direct questions about what was discussed. I conclude that to require answers as to the accuracy and completeness of sentences or paragraphs in minutes is oppressive. Therefore, in directing that the defendants answer the interrogatory questions I will qualify that direction by not requiring the defendants to answer any questions as to the accuracy, inaccuracy or completeness of a particular statement in a minute.
“Don’t know” answers
[35] Another criticism made in particular by Mr Weston for Thai Airways was that in relation to all the questions, the defendants might be forced into “don’t know” answers. Emphasis was placed on the timeframes – seven to 12 years ago. The relevant airline representatives who attended the meetings may be dead, or they may have changed jobs and not be able to be located, or not be prepared to co-operate. It was wrong, Mr Weston submitted, for questions to be permitted that might result in a “don’t know” or “unable to answer” response.
[36] I accept that it would be oppressive to require the parties to answer questions that they undoubtedly could not answer. However, I am not satisfied that any of the questions fall into that category. It was clear from what was said from the bar that the airlines’ inquiries into the various matters at issue have not been concluded. It is possible that the airlines will be able to get assistance from persons who knew about the meetings, and that they may also be able to reconstruct what happened from other documents. They should make reasonable efforts to answer. While I accept that there may be some questions that cannot be answered by the airlines despite their reasonable efforts, this possibility does not make the questions oppressive and vexatious.
[37] Mr Brown also submitted that it was of value to the Commerce Commission to get “don’t know” answers. The present situation is that in the statements of defence and in the answers to the notices to admit facts, the propositions covered by the interrogatory questions have not been admitted. The Commerce Commission anticipates arguments from the defendant airlines that it has failed to prove parts of its case. Alternatively the airlines may, not having admitted that meetings occurred, then produce witnesses who will say they had some knowledge of the meetings and that the statements in the minutes meant something different, or had a different implication for a particular airline, than that put forward by the Commerce Commission. A “don’t know” answer will give the Commerce Commission the assurance that no such evidence (referred to by Mr Brown as a le Carré defence) will be adduced.
[38] I accept that in the context of a regulatory proceeding that a plaintiff ’s case is assisted by requiring a defendant to commit itself to a position in relation to a relevant piece of evidence, even if that position is to say that the defendant is not sure because of a lack of knowledge whether the proposition is correct or not.
[39] For these reasons I do not accept that the possibility of “don’t know” answers is a valid ground for objection.
Workload
[40] The airlines have emphasised the extensive nature of the questions. In summary:
(a) For Singapore Airlines, there are 96 “master” questions, with 692 questions in total covering 63 meetings. The alleged meetings range in date from 26 January 2000 to 28 July 2005 and all meetings are alleged to have occurred overseas.
(b)For Thai Airways there are 89 “master” questions, with 824 questions in total covering 62 meetings. The alleged meetings range in date from 14 January 1997 to 28 July 2005 and all meetings are alleged to have occurred overseas.
(c) For Cathay Pacific there are 98 sets of questions with about 1,244 questions in total. The questions relate to 56 alleged meetings and 15 organisations (e.g. “Cargo Committee IATA”). The alleged dates of the 56 meetings range from 15 and a half years ago (14 January 1997) to almost seven years ago (15 September 2005) and they are all alleged to have occurred outside New Zealand.
[41] Mr Weston in particular emphasised the stress that answering these questions would place upon the defendant airlines. To answer questions requires investigations in offices around the world. Resources are at present split between the Australian and New Zealand proceedings, and in addition all efforts are being made to complete
the process of understanding and assimilating the discovered documents and preparing the briefs that must be filed in December.
[42] Mr Brown for the Commission submitted that what happened at these meetings has long been at issue, and that the airlines have already had a great deal of time to focus on who was present and what was said. The interrogatories are tailored so as not to ask questions where admissions have already been given. He referred to the fact that the airlines asked the Commission to provide particulars in its statement of claim of the date of the meeting, the attendees, and who organised the meeting and the venue. Those particulars were provided. In addition, the Commission had provided copies of the minutes to the defendants to ensure that they understood the case against them. He submitted that the defendants’ responses to those highly particularised allegations were inadequate. Cathay Pacific, for example, had generally provided blank denials to the allegations, while some other defendants had responded more fully. None of the airlines had provided admissions on certain crucial issues relating to the minutes.
[43] In considering oppressiveness I first take into account the position and resources of the defendant airlines. The defendant airlines are significant organisations and it is clear have devoted very considerable resources to defending the proceedings.
[44] They have been grappling with the issues now for some time. The existence of the claims was appreciated by the airlines as early as February 2006. They have had particular notice of the relevance and importance of the meetings and the minutes of the meetings for over a year.
[45] It can be assumed that they have already considered what happened at the meetings and made inquiries so that they could adequately plead to the particulars and answer the notices to admit facts. The Commission has issued notices to obtain admissions of the matters for which the defendants had sought particulars, but those responses have often denied the particular in question. Cathay Pacific had refused to provide any admissions beyond limited admissions as to the acronyms used for airlines and certain industry bodies. Singapore Airlines and Thai Airways, although
their responses varied, have provided fuller admissions. They were prepared to admit their attendance at some meetings. However, they did not provide admissions as to what was discussed and about whether they received the minutes. They have now long been seized of the need to come to grips with the knowledge of their employees of the meetings.
[46] It can also be assumed that the preparation of their briefs is underway and that in the course of the preparation of their briefs the airlines will be considering in detail what happened at the various meetings and the circumstances of the issue of the minutes.
[47] I also take into account the fact that the effect of my decision on these interrogatories will be to reduce the number of interrogatories. I have not endeavoured to calculate the exact number of interrogatories that will not have to be answered following my directions, but they will be considerable. Also the most onerous answers sought were those that required the airlines to comment on the accuracy of the minutes. They will not now need to do this and the research required to answer questions as to who was at the meetings, whether the minutes were received and whether any alterations were sought, will be much more limited.
[48] As is the case in assessing the scope of discovery, a consideration of proportionality is relevant to the scope of interrogatories. The factors already mentioned, such as the considerable resources of the defendants, the now limited number of questions and the limited difficulty in answering those that remain, are relevant. So also are other factors relevant to proportionality issues, such as the considerable importance and relevance of the questions asked. The considerable amounts at issue in the proceeding are also a relevant consideration.
[49] Taking all these factors into account I do not consider that requiring the airlines to answer the remaining questions is oppressive.
[50] I do, however, think that the airlines should be given more time than to the end of August to answer those questions. I note that Air New Zealand has agreed to answer the full interrogatories sought, some by 5 October 2012 and the remainder by
2 November 2012.
[51] I do not consider it fair to require the answers to be provided by September when the Commission files its briefs. However, I think it would be unfair to delay the answering until the time of the filing of the defendants’ briefs. It must be anticipated that from now on there will be considerable focus being placed on the evidence by the airlines, and more time will be allocated in the period from when they received the Commission’s briefs in August.
[52] I have decided that a fair time to give the defendants is approximately two months from the issue of this judgment, to 15 October 2012. By then the defendants will have done a lot of the work on their briefs, which will have to be filed within a further two months.
Particular position of Cathay Pacific
[53] Cathay Pacific admitted fewer facts in its answer to the notices to admit, and therefore has been asked more questions than the other airlines.
[54] The explanation offered is that Cathay Pacific had a particularly large amount of discovered documents to process and that this process is ongoing.
[55] Given that Cathay Pacific has presumably been working on the issues relating to this trial through all of this year, and given what appear in comparison to the other airlines to be the rather unconstructive answers it has given to the notice to admit facts, I do not consider it unfair that it should now be required to answer this now more limited set of interrogatory questions. I do not think there is a case for any different treatment for Cathay Pacific from the other airlines, and Cathay Pacific is to answer the interrogatory questions with the exceptions stated.
[56] The timetable provided for limited interrogatories. The defendant airlines argued that these go beyond the ambit of limited interrogatories, and beyond what is reasonable in a commercial list proceeding where interrogatories should not be encouraged, and be limited in scope.
[57] I do not believe that these interrogatories are inconsistent with those considerations. These are limited interrogatories. The interrogatories largely relate to questions about aspects of particularised minutes, and have a particular purpose.
Result
[58] Cathay Pacific Airways Ltd, Singapore Airlines Ltd & Singapore Airlines Cargo Pte Ltd, and Thai Airways International Public Co Ltd are to file and serve answers to the interrogatories contained in the notices of interrogatories of the plaintiff dated 29 June 2012, save for the following questions:
(a) Questions which relate to a meeting where it has not been shown that a representative of the defendant airline being asked the question was present, or it is not shown that a group of airlines likely to include the interrogated airline were represented at the meeting, or it is not shown that the particular airline of which the question is asked was sent or received a copy of the minutes. So long as one of the stated criteria is met, the defendant airline has to answer the question.
(b)Questions as to the accuracy or completeness of a particular minute or part thereof.
[59] The answers are to be provided by 15 October 2012.
[60] Both sides have had a measure of success. However, costs are reserved for further submissions if the parties consider this necessary.
……………………………..
Asher J
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