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.
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.
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.
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).
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…
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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AGLC
Schenker AG v Commerce Commission [2013] NZCA 114
Case
[2013] NZCA 114
Decision Date
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.