Schenker AG and Schenker (NZ) Limited v Commerce Commission
[2012] NZCA 245
•14 June 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA162/2012 [2012] NZCA 245 |
| BETWEEN SCHENKER AG AND SCHENKER (NZ) LIMITED |
| AND THE COMMERCE COMMISSION |
| AND AIR NEW ZEALAND LIMITED |
| AND CATHAY PACIFIC AIRWAYS LIMITED |
| AND EMIRATES |
| AND JAPAN AIRLINES INTERNATIONAL CO LIMITED |
| AND KOREAN AIRLINES CO LIMITED |
| AND MALAYSIAN AIRLINE SYSTEM BERHAD LIMITED |
| AND SINGAPORE AIRLINES LIMITED & SINGAPORE AIRLINES CARGO PTE LIMITED |
| AND THAI AIRWAYS INTERNATIONAL PUBLIC COMPANY LIMITED |
| AND QANTAS AIRWAYS LIMITED |
| AND BRITISH AIRWAYS PLC |
| Hearing: 21 May 2012 |
| Court: O'Regan P, Wild and Miller JJ |
| Counsel: P N Collins for Appellants |
| Judgment: 14 June 2012 at 11.30 am |
JUDGMENT OF THE COURT
AThe second to ninth respondents’ challenge to the Court’s jurisdiction to hear the appeal is dismissed.
BCosts are reserved.
_______________________________________________________________
REASONS OF THE COURT
(Given by Miller J)
Introduction
The Commerce Commission brought proceedings against the respondent airlines, alleging that they and others fixed prices of international air cargo services. The airlines were sued separately, and the proceedings were all entered on the commercial list at Auckland. Those against the tenth and eleventh respondents ended in judgment. The trial of those against the other respondents is to resume in February 2013.
The present appellants, whom we will call Schenker, are not parties to any of the proceedings. They are freight forwarders who say they “may have suffered loss as a result of the alleged conduct” in the proceedings. They seek evidence. They want to inspect and copy the High Court files, including pleadings and evidence and the agreed bundle of documents.
Schenker applied by letter to the Registrar of the High Court at Auckland for directions under High Court Rules 3.9 and 3.13 allowing them to access the files. The application was referred to the parties, who objected, so a hearing was held before Asher J, who is a commercial list Judge and also the trial Judge. The Judge dismissed Schenker’s application in a judgment dated 24 February 2012.[1]
[1] Commerce Commission v Air New Zealand Ltd [2012] NZHC 271.
Schenker filed an appeal which met with the response that, because the judgment was an interlocutory decision in proceedings entered on the commercial list, leave must first be obtained under s 24G of the Judicature Act 1908.
This judgment answers the preliminary question whether, leave having not been sought, this Court has jurisdiction to entertain the appeal. The answer turns on the meaning of “interlocutory decision” in s 24G.
Appeals from interlocutory decisions in commercial list proceedings
We begin by outlining the relevant provisions of the Judicature Act and High Court Rules. Appeals from interlocutory decisions of the High Court are normally brought as of right, although this Court may refuse to hear them before trial.[2] But appeals from interlocutory decisions in proceedings entered on the commercial list are exceptional. The Judicature Act proves that they need leave of the High Court or, if leave is refused there, this Court:
24G Restriction of right of appeal from interlocutory decisions
(1) No appeal shall lie from an interlocutory decision of the High Court in respect of any proceeding entered on a commercial list unless leave to appeal to the Court of Appeal is given by the High Court on application made within 7 days of the decision being given or within such further time as the High Court may allow.
(2) If the High Court refuses leave to appeal from any such interlocutory decision, the Court of Appeal may grant that leave on application made to the Court of Appeal within 21 days of the refusal of leave by the High Court.
(emphasis added).
[2] Judicature Act 1908, s 66; and Siemer v Heron [2011] NZSC 133, [2012] 1 NZLR 309 at [31].
“Interlocutory decision” is nowhere defined, but the Act and the High Court Rules each define an “interlocutory application”: the Act as follows:[3]
interlocutory application —
(a)means any application to the Court in any civil proceedings or criminal proceedings or intended civil proceedings or intended criminal proceedings for an order or a direction relating to a matter of procedure or, in the case of civil proceedings, for some relief ancillary to that claimed in a pleading; and
(b) includes an application for a new trial; and
(c)includes an application to review an order made, or a direction given, on any application to which paragraph (a) or paragraph (b) of this definition applies.
[3] Judicature Act 1908, s 2.
The rules provide that an interlocutory application is made in accordance with r 7.19, which prescribes the form that such applications must take.[4] An application must state the relief sought and the grounds justifying that relief.[5]
[4] High Court Rules, r 1.3. An oral application may also be made under r 7.41.
[5] High Court Rules, r 7.19(1)(a).
The rules also define “interlocutory order”, in language corresponding closely to the Act’s definition of interlocutory application:[6]
[6] High Court Rules, r 1.3.
interlocutory order —
(a) means an order or a direction of the court that—
(i)is made or given for the purposes of a proceeding or an intended proceeding; and
(ii)concerns a matter of procedure or grants some relief ancillary to that claimed in a pleading; and
(b) includes—
(i) an order for a new trial; and
(ii)an order striking out the whole or part of a pleading; and
(iii)an order varying or rescinding an interlocutory order.
This Court has observed that “interlocutory rulings” fall into at least three categories.[7] The three categories identified all deal in one way or another with the progress or result of the substantive proceeding in which the rulings are made:
[18] Broadly speaking, interlocutory rulings (to use a neutral word) fall into at least three categories: those that determine or affect the rights or liabilities which are in issue, that is the merits; those that decide the shape of the substantive proceedings; and those ancillary but important rulings on times and procedures. That classification corresponds broadly with the categories noted by Donaldson MR in Bland v Chief Supplementary Benefit Officer at p266 – decisions determining a matter in dispute; “possibly an order determining how the matter shall be determined – the ordinary interlocutory procedure order which is made in any form of legal proceedings”; and the grant or refusal of a permission “which determines nothing at all”.
Access to High Court files for civil proceedings
[7] Winstone Pulp International Ltd v Attorney-General (1999) 13 PRNZ 593 (CA).
Anyone may inspect the formal court record, which comprises registers, notices of hearing and judgments and reasons for judgment.[8] There is no general right to access the rest of the court file. The parties may search it without fee under r 3.8, but non-parties must request access under r 3.9 or apply under r 3.13.
[8] High Court Rules, r 3.7.
Schenker invoked r 3.9 for access to the proceedings against the second to ninth respondents. The rule applies during the substantive hearing stage; that is, during the hearing and until the close of the 20th working day after delivery of final judgment. It has been described as the open justice window, during which there is a general right of access.[9] Although the parties are presently preparing for trial - work which includes preparing evidence - counsel agree that the proceedings are at substantive hearing stage, reasoning that the hearing has begun but stands adjourned part-heard. The hearing was split by consent and the Court has delivered a “stage 1” judgment dealing with jurisdiction.[10] That judgment rested on an agreed statement of facts which is among the documents sought by Schenker. Before Asher J no-one seems to have disputed that r 3.9 applies, and for purposes of this judgment we will assume, without deciding, that it does.
[9] GFD I LLP v Melview (Kawarau Falls Station) Investments Ltd (in rec) HC Auckland CIV-2010-404-7701, 5 April 2012 at [12].
[10] Commerce Commission v Air New Zealand Ltd (2011) 9 NZBLC 103,318 (HC).
The rule provides that any person may access specified documents relating to the proceeding concerned and establishes an informal “request for access” procedure:
3.9 Access to documents during substantive hearing stage
(1) This rule applies during the hearing of a proceeding (other than the hearing of an interlocutory application) and until—
(a)the close of the 20th working day after the court has given the final judgment on the proceeding; or
(b)the discontinuance of the proceeding before the final judgment is given.
(2) During the period to which this rule applies, any person may access any of the following documents relating to the proceeding:
(a)any pleading, reference, notice, or application filed in the court:
(b)affidavits, depositions, or other written statements admitted into evidence for the purposes of the hearing:
(c)documents admitted into evidence for the purposes of the hearing:
(d)if any evidence given orally at the hearing has been transcribed, a transcript of that evidence.
(3) Despite subclause (2), a Judge may, on his or her initiative or on request, direct that any document, or part of a document, relating to the proceeding not be accessed without the permission of a Judge.
(4) A request for access to a document under this rule is made informally to the Registrar by letter that—
(a) identifies the requested document; and
(b) gives the reasons for the request.
(5) The following provisions apply when a request for access to a document is made under subclause (4):
(a)the Registrar must promptly give the parties or their counsel a copy of the request:
(b)a party who wishes to object must, before the relevant deadline (within the meaning of rule 3.10), give written notice of the objection to the Registrar, to the person who made the request, and to the other parties or their counsel:
(c)on receipt of an objection, the Registrar must promptly refer the objection and the request to the Judge for determination:
(d)unless the document is subject to a restriction stated in subclause (3) or in rule 3.12, the Registrar must promptly give the person who made the request access to the document—
(i)if the Registrar receives no objection before the expiry of the relevant deadline (within the meaning of rule 3.10); or
(ii)if the parties or their counsel earlier agree that the person be given access to the document:
(e)every request that relates to a document that is subject to a restriction stated in subclause (3) or in rule 3.12 is taken to be a request for the permission of a Judge, and must be promptly referred to the Judge by the Registrar.
(6) The Judge may determine an objection referred to the Judge under subclause (5)(c) or a request for permission under subclause (3) or (5)(e) in any manner the Judge considers just….
A person who cannot access a document, court file or record under rr 3.7 to 3.10 may do so with the Court’s permission, given under r 3.13. An applicant who seeks access before or after the substantive hearing stage must invoke this rule. Schenker did so for the concluded proceedings involving the tenth and eleventh respondents. The rule does not create a right of access. Rather, it permits an informal “application”:
3.13 Applications for permission to access documents, court file, or formal court record other than at hearing stage
(1) This rule applies whenever the permission of the court is necessary under these rules and is sought to access a document, court file, or any part of the formal court record, except where access may be sought under rule 3.9.
(2) An application under this rule is made informally to the Registrar by a letter that—
(a)identifies the document, court file, or part of the formal court record that the applicant seeks to access; and
(b) gives the reasons for the application.
(3) The application is heard and determined by a Judge or, if a Judge directs the Registrar to do so, by the Registrar.
(4) On receipt of an application made in accordance with subclause (2), the Judge or Registrar may direct that the person file an interlocutory application or originating application.
(5) The applicant must give notice of the application to any person who is, in the opinion of the Judge or Registrar, adversely affected by the application.
(6) The Judge or Registrar may dispense with the giving of notice under subclause (5) if it would be impracticable to require notice to be given.
(7) The Judge or Registrar may deal with an application on the papers, at an oral hearing, or in any other manner the Judge or Registrar considers just.
The criteria for decision, whether under r 3.9 or r 3.13, are set out in r 3.16:
3.16 Matters to be taken into account
In determining an application under rule 3.13, or a request for permission under rule 3.9, or the determination of an objection under that rule, the Judge or Registrar must consider the nature of, and the reasons for, the application or request and take into account each of the following matters that is relevant to the application, request, or objection:
(a) the orderly and fair administration of justice:
(b)the protection of confidentiality, privacy interests (including those of children and other vulnerable members of the community), and any privilege held by, or available to, any person:
(c)the principle of open justice, namely, encouraging fair and accurate reporting of, and comment on, court hearings and decisions:
(d) the freedom to seek, receive, and impart information:
(e)whether a document to which the application or request relates is subject to any restriction under rule 3.12:
(f) any other matter that the Judge or Registrar thinks just.
How the High Court handled Schenker’s application
The respondents assert that the procedure adopted in the High Court confirms the interlocutory nature of the Court’s decision, so we must outline what happened.
The stage 1 hearing began on 11 May 2011 and concluded on 10 June 2011. During that hearing Schenker wrote to the Registrar seeking access to court files. Two letters were written, both dated 23 May. One sought under r 3.9 access to documents, including evidence and the agreed bundle, in eight live proceedings. Under r 3.13, the other letter sought access to a narrower class of documents in one closed proceeding.
The Registrar referred the letters to the parties to all the proceedings. All but the tenth respondent to this appeal, Qantas, filed memoranda in opposition. Schenker was permitted to file submissions, to which the other parties (including Qantas) responded with their own. The Commerce Commission suggested that non-parties whose information is included in the record should be heard and invited the Court to schedule a fixture, which the Court did in its minute number 28, dated 26 September 2011. One of the non-parties, DHL, secured leave to be heard. Asher J held a hearing on 12 December 2011, hearing from Schenker and DHL and most of the parties.
No one asked Asher J to direct that Schenker file an interlocutory application or an originating application under r 3.9(6) or r 3.13(4). His decision accordingly responded to the informal applications, which rested on r 3.9(4) and r 3.13(2).
The High Court decision is in form a judgment in the eight live proceedings, all of which are entered on the commercial list. We are told that these proceedings have not been consolidated but are to be tried together, with the evidence common to all. The decision is not intituled in the closed proceedings against the tenth and eleventh respondents. Nor, it seems, did counsel appear for them at the hearing. The Judge recorded, doubtless relying on the memoranda in opposition, that at least one former party, Qantas, opposed.
Application to access court file may result in interlocutory decision
We have observed that r 3.13 allows a judicial officer to direct that the applicant should file an interlocutory application or an originating application. Mr Land conceded, correctly in our view, that although r 3.9 establishes no corresponding procedure a Judge may direct that an interlocutory application be filed in the subject proceeding, for r 3.9(6) provides that an objection may be determined “in any manner the Judge considers just”.
Had Asher J directed that an interlocutory application be filed, such application must have been filed in the proceedings and the resulting decision must have been an interlocutory one in those commercial list proceedings, so subject to s 24G. No such application having been filed, can it be said that a judgment on an informal request for access made to the Registrar under r 3.9(4) or an informal application under r 3.13(2) is “an interlocutory decision in respect of” one or more commercial list proceedings? We turn first to r 3.9.
Is a decision on an informal request under r 3.9 interlocutory in nature?
We have cited the definitions of “interlocutory application” in the Judicature Act and the rules. Several points emerge when these definitions and associated procedures are compared with requests for access under r 3.9:
(a)An “interlocutory application” is made to the Court, while a “request for access” under r 3.9 is made to the Registrar. (This is not to deny that interlocutory applications can sometimes be determined by a Registrar, or that the Registrar must refer an access request to a Judge if anyone objects.)
(b)An interlocutory application seeks some relief in the proceeding in which it is filed. The relief almost invariably compels an opposing party to do something. An access request has no inherent procedural or substantive implications for the proceeding, and it requires nothing of the parties. Rather, it exercises a statutory right of access to documents held by the Court. The only person who need do something to comply with a request is the Registrar, who makes the affected documents available to the applicant.
(c)An interlocutory application must follow a prescribed form, while an access request is made informally by letter.
(d)An interlocutory application is assigned a hearing date, and the applicant must serve the other parties at their addresses for service, while an access request normally receives no hearing date and need not be served; rather, the Registrar copies it to the parties or their counsel, and if anyone protests refers the request to a Judge, who decides what procedure to adopt.
(e)The access rules include criteria for decision which reflect the public nature of the right being exercised and contemplate a balancing exercise.
This analysis confirms that a request for access under r 3.9 is not made for purposes of a proceeding, does not concern a matter of procedure, and does not grant some relief ancillary to that claimed in a pleading. The rule considers access an end in itself. Mr Land pointed out that in Mafart v Television New Zealand Ltd, which concerned a request for access to a long-closed criminal file, Anderson P characterised the High Court decision on the application as interlocutory in nature.[11] On further appeal, the majority of the Supreme Court held that the request for access was a civil proceeding for purposes of s 66 of the Judicature Act.[12] We conclude that an informal request for access under r 3.9 is not an interlocutory application as defined in the Judicature Act and High Court Rules.
[11] Mafartv Television New Zealand Ltd (2005) 22 CRNZ 464 (CA) at [15].
[12] Mafart v Television New Zealand Ltd [2006] NZSC 33, [2006] 3 NZLR 18 at [40] and [52].
This is not the end of the matter, for an interlocutory decision need not always follow an interlocutory application made in the prescribed form. It may follow a memorandum of counsel, or a case management conference, or some action taken by the Court on its own initiative. That brings us to the definition of interlocutory orders, which form a subset of interlocutory decisions. A decision on an access application may take the form of an order, with or without reasons, or a judgment in the proceeding, as the Judge thinks fit. The definition of interlocutory order, which we have cited earlier, requires that the order be made for purposes of the proceeding in which it was made, and that it concern procedure or some ancillary relief. So an order on an access request under r 3.9 is not interlocutory either. We accept that judgments are normally accompanied by reasons, but that does not supply a sufficiently substantive reason to distinguish interlocutory judgments from interlocutory orders for s 24G purposes. Form cannot be decisive.
Mr Land appealed to the policy underlying s 24G, arguing that it requires a liberal interpretation. The section should ensure that interlocutory appeals do not delay trials of commercial list proceedings. For that reason, leave is granted “only where the particular circumstances clearly warrant incurring the further delay that will be involved.”[13] But a request for access need not delay the trial, to which it has no direct connection. It is true that Asher J worried that the request for access will distract counsel and parties from their trial preparation, for which an onerous timetable has been set. That is a relevant consideration under r 3.16 in this unusual case, but it does not dictate that all access appeals that relate to case files for commercial list proceedings should be by leave. Access requests under r 3.9 are made during the hearing, so they cannot normally disrupt trial preparation or delay the hearing. They are capable of disrupting the hearing itself, but the Judge can control that by deferring onerous requests, or those that are not time-sensitive, until afterward. Applications for access pre-hearing must be made under r 3.13, which as noted confers no right of access.
[13] Meates v Taylor (1992) 5 PRNZ 524 (CA) at 526.
We acknowledge that this analysis means the less formal the application for access the less circumscribed the right of appeal, but that criticism holds good for commercial list proceedings only. Both counsel assumed that in all other cases an applicant for access may appeal as of right. We have adopted that assumption for purposes of this judgment, finding it consistent with what the Supreme Court said in Mafart v Television New Zealand and Siemer v Heron,[14] but we record that we have not been asked to decide whether it is correct under the current access rules. We also observe that the hostile nature of Schenker’s interest plainly warranted formal process here. If the respondents were concerned that interlocutory appeals would interfere with the trial, it would have been a simple matter to ask the Judge to direct that Schenker file an interlocutory application.
The challenge to jurisdiction extends to the closed proceedings
[14] Mafart v Television New Zealand Ltd, above n 12, at [40] and [52]; and Siemer v Heron, above n 2, at [32].
In this Court the jurisdictional challenge to Schenker’s appeal was mounted by the second to ninth respondents only. Mr Collins argued that the appeal must survive so far as the tenth and eleventh are concerned. We disagree. Jurisdiction having been contested, the Court must be satisfied that it exists. In any event, the Court’s answer to the question whether the judgment is an interlocutory decision in commercial list proceedings is equally applicable to all respondents.
Can an interlocutory decision be given in closed proceedings?
Mr Collins submitted that, the proceedings against the tenth and eleventh respondents having ended in final judgment, no interlocutory application or decision is possible in those proceedings; accordingly, an appeal may be brought as of right under s 66. He admitted no distinction between cases in which the informal procedure was used and cases in which the Court required that the applicant file an interlocutory application or originating application under r 3.13(4).
We accept that no interlocutory application or decision was possible. In Uttinger v Baycity New Zealand Ltd,[15] which concerned an application for costs made after a commercial list proceeding had been settled and discontinued, this Court held that a subsequent costs decision was not interlocutory, for the proceeding was at an end. It is true that r 3.13 permits access applications after a proceeding ends, and provides that the High Court may direct that an interlocutory application be filed where access is sought outside the substantive hearing stage, which ends at the close of the twentieth working day after final judgment or on discontinuance. However, the rule also governs access applications made before the substantive hearing stage, when interlocutory applications are possible. If the Court wants a formal process and the subject proceeding is at an end, the appropriate procedure, for which the rule also provides, is an originating application.
[15] Uttinger v Baycity New Zealand Ltd [2008] NZCA 330, (2008) 19 PRNZ 54 (CA).
Accordingly, the decision was not interlocutory vis-a-vis the tenth and eleventh respondents, so Schenker need not seek leave under s 24G with respect to the closed proceeding. We add that although r 3.13 confers no right of access and speaks of applications not requests, its procedure is relevantly indistinguishable from that under r 3.9, so the distinction we have drawn above between requests for access and interlocutory applications applies equally to r 3.13.
Result
We conclude that the judgment was not an interlocutory decision for purposes of s 24G, so Schenker need not seek leave to appeal. Accordingly, this Court has jurisdiction to hear the present appeal.
Costs are reserved.
Solicitors:
Glaister Ennor, Auckland for Appellants
Kensington Swan, Auckland for Second to Ninth Respondents
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