Commerce Commission v Viagogo AG - [2019] NZHC 776

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2018-404-2659

[2019] NZHC 776

BETWEEN
COMMERCE COMMISSION

Plaintiff

AND

VIAGOGO AG

Defendant

Hearing: 10 April 2019

Appearances:

J D Every-Palmer QC and A D Luck for the plaintiff H O Meikle-Downing for the defendant

Judgment:

10 April 2019

JUDGMENT OF JAGOSE J

This judgment is delivered by me on 10 April 2019 at 4.00 pm pursuant to r 11.5 of the High Court Rules.

.....................................................
Registrar / Deputy Registrar

Counsel/Solicitors:
James Every-Palmer QC, Wellington MinterEllisonRuddWatts, Auckland

COMMERCE COMMISSION v VIAGOGO AG [2019] NZHC 776 [10 April 2019]

[1] The plaintiff seeks leave to appeal against Courtney’s J’s decision of 18 February 2019, dismissing its application for interim orders.1 The defendant (which disputes it is in any event within the Court’s jurisdiction) abides my decision.

[2] The appeal initially was sought to be brought by right on the last day for filing. The Court of Appeal Registry indicated leave would be required. The application for leave thus is made minutely late to this Court. It requires also an extension of time. Given those circumstances, I will grant the extension.

[3] The Commission reserves its position on whether such leave is required. Its counsel James Every-Palmer QC says its application for an interim injunction to restrain contended unlawful conduct “is not a matter of procedure, and reflects part of the substantive relief claimed in the Commission’s statement [of] claim so is not ancillary”, the Judge’s decision therefore not being an order on an ‘interlocutory application’ as defined,2 and the Commission having a right of appeal against any other order. He characterises the unsuccessful application as one for “substantive interim relief”.

[4] I find that a difficult proposition to allow to stand undisputed. As is well- comprehended, interim injunction applications are determined on the basis of whether the plaintiff has a serious question for trial, and whether the balance of convenience and overall interests of justice favour granting the injunction.3 The resulting decision does not determine any substantive question. It precisely is ancillary to that point, for which leave is required to appeal.4 Hence the reservation of a right to appeal against strike out, dismissal, and summary judgment orders, of substantive effect despite being “relief ancillary to that claimed in a pleading”.5 Such terminal relief is not that substantively claimed, but supportive of and/or reliant on its foundation.

[5] Be that as it may, leave is sought. The question for determination by the Court of Appeal is whether this Court’s jurisdiction to make interim orders is constrained by

1      Commerce Commission v Viagogo AG [2019] NZHC 187 (Judgment).
2      Senior Court Act 2016, s 4.
3      American Cyanamid Co v Ethicon Ltd [1975] AC 396 (HL); and Klissers Farmhouse Bakeries Ltd
[1985] 2 NZLR 129 (CA).
4      Senior Courts Act 2016, s 56(3)
5      Section 56(4).

any undetermined protest to jurisdiction, or by any prerequisite for service. The question arises because of the Court…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] NZHC 776
Decision Date: 10 April 2019

CaseChat Overview and Summary

In the High Court of New Zealand, the Commerce Commission brought an action against Viagogo AG. The Commission sought leave to appeal against the decision of Courtney J, who dismissed the Commission's application for interim orders on 18 February 2019. The Commission's primary contention was that it should be granted leave to appeal against Courtney J's ruling, which had dismissed its application for interim relief on the basis that the Court lacked jurisdiction.

The central legal issue was whether the Court of Appeal's jurisdiction to grant interim orders is influenced by any protest to the Court's jurisdiction or by any prerequisite for service. This question arose from the Court of Appeal's decision in Advanced Cardiovascular Systems, which Courtney J had accepted as authority for her ruling that she lacked jurisdiction to determine an interlocutory application for interim relief in the presence of a jurisdictional protest.

The Court held that the threshold for leave to appeal was high, but the Commission had identified an arguable error of law in Courtney J's decision. The Court further found that the error had public importance due to the Commission's role in protecting New Zealand consumers and New Zealand's position in an international economy. Given that the Court of Appeal's decision in Advanced Cardiovascular Systems had not been uniformly followed, the Court concluded that an appellate determination would have precedential value. The Court also noted that the appeal would only contribute to any delay if the defendant's jurisdictional protest were to succeed, and that the interests of justice were engaged by Courtney J's identification that she lacked "jurisdiction" to consider the application.

The Court extended the time for the bringing of the Commission's application for leave to appeal and granted the Commission leave to appeal against the Judgment. This decision allows the Commission to pursue its appeal against Courtney J's ruling on the grounds that it dismissed the application for interim relief based on jurisdictional grounds.

Orders