Major Electricity Users' Group Inc v Commerce Commission - [2015] NZHC 1042

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2011-485-268

CIV-2011-485-269 [2015] NZHC 1042

UNDER Part 4 of the Commerce Act 1986

IN THE MATTER

of an intended appeal to the Court of Appeal under s 52Z(6) and s 97(1) of that Act

BETWEEN

THE MAJOR ELECTRICITY USERS' GROUP INC

Applicant

AND

THE COMMERCE COMMISSION, VECTOR LIMITED, POWERCO LIMITED AND TRANSPOWER NEW ZEALAND LIMITED

Respondents

On the papers

Counsel:

N M Pender and S L Franks for Applicant
V E Casey for Commerce Commission
A S Butler and C M Marks for Vector
V L Heine and B A Davies for Powerco and Transpower

Judgment:

18 May 2015

COSTS JUDGMENT OF CLIFFORD J

Introduction

[1] On 28 July 2014 this Court1 gave judgment2 declining leave to The Major

Users’ Electricity Group Inc (MEUG) to appeal its judgment in Wellington

International Airport Limited v Commerce Commission [2013] NZHC 3289.

1 Comprising, pursuant to s 52ZA(3) of the Commerce Act 1986, Clifford J, Mr R Davy (lay member) and Mr R Shogren (lay member).
2 The Major Electricity Users’ Group Inc v Commerce Commission [2014] NZHC 1765.

THE MAJOR ELECTRICITY USERS' GROUP INC v THE COMMERCE COMMISSION [2015] NZHC 1042 [18 May 2015]

[2] The respondents, Vector, and Powerco and Transpower jointly, seek Schedule 3C costs against MEUG on the basis they opposed leave being granted to MEUG and had succeeded in that opposition. MEUG opposes those applications. The Commerce Commission abided the Court’s leave decision, and does not seek costs.

[3] In a Minute of 23 September 2014 I deferred consideration of costs on MEUG’s application for leave to appeal until I knew whether I would be dealing with costs applications arising out of the substantive proceedings. In a joint memorandum dated 9 February 2015 counsel for Vector, and Powerco and Transpower, advised me that issues of costs arising from the substantive appeal had been resolved,3 that MEUG continued to oppose their clients’ applications for costs on its unsuccessful leave to appeal application and that a timetable had been agreed for the exchange of written submissions. MEUG subsequently sought an oral hearing on the question, which I declined.4

[4] I am therefore considering these applications on the papers. I do so first in terms of the applications originally made by Vector, and Powerco and Transpower, in September 2014, then by reference to the submissions filed by MEUG in February this year opposing those applications and, finally, to the reply submissions filed subsequently.

Submissions

The applications

[5] Powerco and Transpower apply jointly for an order of costs of $19,110 calculated on a 3C basis. That joint application reflects the fact that, in responding to MEUG’s application for leave, they were represented jointly by Chapman Tripp.
Vector applies individually for costs in an identical amount.

3 In a memorandum of 26 February 2015 the Commission confirmed that it had reached a settlement with all appellant parties for payment of costs at approximately 70 per cent of the estimated scale costs…

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: [2015] NZHC 1042
Decision Date: 18 May 2015

CaseChat Overview and Summary

The case involved The Major Electricity Users' Group Inc (MEUG) seeking to appeal a decision of the High Court in New Zealand, which declined leave to appeal its judgment in Wellington International Airport Limited v Commerce Commission. The respondents, Vector, Powerco, and Transpower, sought Schedule 3C costs against MEUG on the basis that they opposed the leave to appeal and had succeeded in that opposition. MEUG opposed the applications for costs. The Commerce Commission did not seek costs. The legal issues before the court were whether the "costs follow the event" principle should apply to proceedings arising from input methodology determinations, whether requiring MEUG to pay costs would chill consumer participation in future proceedings, and whether all three suppliers could have presented a joint defence. The court found that leaving costs to lie where they fall in the substantive appeals best achieved the objective of achieving input methodologies that would promote the Part 4 purposes. The court declined the applications for costs made by Vector, Powerco, and Transpower jointly.
The final orders of the court were that the applications for costs made by Vector, Powerco, and Transpower jointly were declined. Costs of the participants in these processes should, and will here, lie where they fall. If a "costs" discipline is appropriate for potential participants in proceedings like these, that in the court's view is provided by the accepted basis upon which the Commerce Commission may be entitled to costs where a challenge to one of its decisions fails.

Orders