Schenker AG v Commerce Commission

Case [2013] NZCA 114


IN THE COURT OF APPEAL OF NEW ZEALAND

CA162/2012

[2013] NZCA 114

BETWEEN  SCHENKER AG AND SCHENKER (NZ) LIMITED
Appellants

AND  COMMERCE COMMISSION
First Respondent

AND  AIR NEW ZEALAND LIMITED
Second Respondent

AND  CATHAY PACIFIC AIRWAYS LIMITED
Third Respondent

AND  EMIRATES
Fourth Respondent

AND  JAPAN AIRLINES INTERNATIONAL CO LIMITED
Fifth Respondent

AND  KOREAN AIRLINES CO LIMITED
Sixth Respondent

AND  MALAYSIAN AIRLINE SYSTEM BERHAD LIMITED
Seventh Respondent

AND  SINGAPORE AIRLINES LIMTED AND SINGAPORE AIRLINES CARGO PTE LIMITED
Eighth Respondent

AND  THAI AIRWAYS INTERNATIONAL PUBLIC COMPANY LIMITED
Ninth Respondent

AND  QANTAS AIRWAYS LIMITED
Tenth Respondent

AND  BRITISH AIRWAYS PLC
Eleventh Respondent

Hearing:         14 March 2013

Court:             Harrison, White and Priestley JJ

Counsel:         P N Collins and M Singh for Appellants
J C L Dixon and K Rusbatch for First Respondent
S Ladd and C Milne for Second Respondent
I J Thain for Third Respondent
J L Land and A Pope for Third to Ninth Respondents
P Barratt for DHL Global Forwarding (New Zealand) Ltd (Non-party given leave)

Judgment:      17 April 2013 at 3 pm

JUDGMENT OF THE COURT

A        Appeal dismissed.

BCosts for a standard appeal on a band B basis are awarded to the first and second respondents and to DHL.  An additional set of costs is awarded on the same basis to the seven respondents for whom Mr Land appeared.  In each case we certify for one counsel only.

____________________________________________________________________

REASONS OF THE COURT

(Given by Priestley J)

Introduction

  1. This appeal raises the important issue of what requirements a non-party to a civil proceeding must satisfy to obtain access to documents on a High Court civil proceeding file.

  2. We state the obvious at the outset.  The fate of each application will ultimately depend on its context.  To what documents is access sought?  Why?  What is the nature of the proceeding?  What particular interests and factors must be weighed?  For each access request these inquiries will inevitably differ.

  3. The appellants, Schenker AG and Schenker (NZ) Ltd, were collectively a non-party to a proceeding initiated in the High Court by the Commerce Commission (the first respondent) under the Commerce Act 1986.  The Commission alleged that various airlines[1] had engaged in anti-competitive behaviour by fixing certain elements of the prices of in-bound and out-bound air cargo services for New Zealand.[2]

    [1]      Which included the second to eleventh respondents and other airlines who are not parties.

    [2]A “stage one decision” determined that there was a market in New Zealand (a jurisdictional requirement) for air cargo services from overseas countries and regions to New Zealand.  Commerce Commission v Air New Zealand Ltd (2011) 9 NZBLC 103,318 (HC).

  4. Schenker is a large freight forwarder which operates on an international basis and has been involved with various of the respondent airlines through freight-forwarding contracts.  In July 2011 Schenker’s solicitors made a request for access to the High Court file.[3]  In a judgment released on 24 February 2012 Asher J declined the request.[4]  This appeal challenges that judgment.[5]

The request

[3]      See [6] for the precise nature of…

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Schenker AG v Commerce Commission [2013] NZCA 114
Case
[2013] NZCA 114
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CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal from Schenker AG and Schenker (NZ) Limited against the Commerce Commission and various airlines, challenging the decision of Asher J to deny their request for access to documents in a proceeding under the Commerce Act 1986. The airlines were alleged to have engaged in anti-competitive behaviour by fixing prices of inbound and outbound air cargo services for New Zealand. Schenker, a freight forwarder involved with some of the respondent airlines, sought access to all documents before the Court, citing potential loss from the alleged conduct as their reason. The request was denied by Asher J, and this decision is now under appeal.

The appeal centred on the interpretation and application of the High Court Rules, specifically rules 3.9 and 3.16, which govern access to documents by non-parties during civil proceedings. The rules outline a process where access is permitted unless objected to by a party, in which case the Judge must consider various factors before deciding. These factors include the orderly administration of justice, protection of confidentiality, the principle of open justice, and freedom to seek, receive, and impart information. The Court of Appeal found that Asher J correctly approached the discretionary exercise of balancing these factors and concluded that the denial of access was justified due to the confidential nature of the documents and the potential unfairness to the parties who had provided the information under a confidentiality agreement.

The Court of Appeal rejected Schenker's arguments that the Judge had misapplied the rules and erred in weighing the factors. They found that the principle of open justice, while important, was not the paramount consideration and that the Judge appropriately balanced the factors in the context of the specific request and proceeding. The appeal was dismissed, and costs were awarded to the respondents on a band B basis, with certification for one counsel only despite multiple appearances.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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