Nzme Limited v Commerce Commission

[2018] NZHC 216

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE

CIV-2017-485-445

[2018] NZHC 216

BETWEEN

NZME LIMITED

First Appellant

FAIRFAX MEDIA LIMITED
Second Appellant

STUFF LIMITED
Third Appellant

AND

COMMERCE COMMISSION

Respondent

Judgment: 22 February 2018

JUDGMENT OF DOBSON J

[Leave to Appeal]

[1]        On 7 February 2018, the appellants filed an application for leave to appeal the judgment I delivered with Professor Richardson on 18 December 2017.1

[2]        The draft notice of appeal for filing in the Court of Appeal specified three questions in the following terms:

(a)Was the High Court correct, as a matter of law, to find that the Commission has jurisdiction to take into account non-economic, unquantified detriments (in the form of plurality concerns) when applying the legal test for authorisation under s 67(3) of the Act?

1      NZME Ltd v Commerce Commission [2017] NZHC 3186.

NZME LTD v COMMERCE COMMISSION [2018] NZHC 216 [22 February 2018]

(b)Did the High Court err in law and fact in applying the statutory test of whether the unquantified quality detriments and plurality detriments identified by the NZCC were “likely”, and were attributable to the Transaction?

(c)Did the High Court err in law and fact in its approach to balancing unquantifiable detriments against the net quantified benefits of the Transaction?

[3]        By memorandum of its counsel dated 20 February 2018, the respondent advised that it does not oppose leave being granted in relation to these three questions, and will abide the decision of the Court on the granting of leave. Counsel for the respondent raised a concern that the third proposed question on appeal was inappropriate because it would involve a re-run of factual issues determined in the judgment. Notwithstanding that concern, the Commission has accepted that the significance of the proposed transaction to the parties and the public likely justifies a grant of leave. In these circumstances, I am able to deal with the application on the papers.

[4]        Leave for a second appeal is required by s 97 of the Commerce Act 1986, either from the High Court or from the Court of Appeal. The Court is required to have regard to the matters in s 97(2) as follows:

97       Appeal to Court of Appeal in certain cases

…

(2)In determining whether to grant leave to appeal under this section, the court to which the application for leave is made shall have regard to the following matters:

(a)whether any question of law or general principle is involved:

(b)the importance of the issues to the parties:

(c)the amount of money in issue:

(d)such other matters as in the particular circumstances the court thinks fit.

…

[5]        The appellants’ proposed transaction is recognised as having a measure of general importance, with impact arguably for New Zealand society as a whole, and certainly having an impact beyond those directly affected by it. The Court’s decision on the scope of the Commission’s jurisdiction, as raised by question (a) of those proposed, is of general importance and relatively novel.

[6]        The issues raised by questions (b) and (c) also raise matters of general importance, as well as arising in the context of a proposed transaction which has considerable importance to the parties and more widely. The amount of money in issue is substantial.

[7]        Questions (b) and (c) are cast in broad terms when applied to the issues as argued on the appeal. However, in the circumstances of this case, I accept that it would be counterproductive to require a narrowing of their terms.

[8]        Accordingly, I am satisfied that each of the questions readily qualifies and I the grant leave on the terms sought.

Dobson J

Solicitors:

Russell McVeagh, Auckland for appellants Meredith Connell, Auckland for respondent