Transpower New Zealand Limited v Commerce Commission HC Wellington CIV-2011-485-1032
[2011] NZHC 1687
•4 November 2011
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2011-485-1032
UNDER section 91(1B) of the Commerce Act 1986
IN THE MATTER OF an appeal on a question of law from an input methodology determination of the Commerce Commission
BETWEEN TRANSPOWER NEW ZEALAND LIMITED
Appellant
ANDCOMMERCE COMMISSION Respondent
ANDVECTOR LIMITED AND POWERCO LIMITED
Interested parties
Hearing: 19 October 2011 (In chambers)
Appearances: D Shavin QC, V Heine and T Smith for Transpower New Zealand
Limited
B Brown QC, M Scholtens QC, D Laurenson, M Lennard and V Casey for the Commerce Commission
A Butler, C Marks and R Versteeg for Vector Limited
J Hodder SC for Powerco Limited
Judgment: 4 November 2011
JUDGMENT OF CLIFFORD J
Introduction
[1] This is an interlocutory application by Transpower New Zealand Limited
(―Transpower‖) for an extension of time to appeal, on a point of law pursuant to
TRANSPOWER NEW ZEALAND LIMITED V COMMERCE COMMISSION HC WN CIV-2011-485-1032 4
November 2011
s 91(1B) of the Commerce Act 1986,1 against an input methodology determination (an ―IM determination‖) made by the Commerce Commission (―the Commission‖). The Commission opposes that application, on the single ground that under the Commerce Act there is no jurisdiction for such an appeal under s 91(1B). Rather, the Commission says all appeals against IM determinations, including appeals on points of law, must be brought under s 52Z. Vector Limited (―Vector‖) and Powerco Limited (―Powerco‖) have filed similar s 91(1B) appeals, albeit in time (Transpower, Vector and Powerco together ―the Appellants‖). Vector and Powerco support Transpower’s application, as the Commission will oppose those appeals on the same jurisdictional basis.
Context
[2] Part 4 of the Commerce Act, which in its current form came into effect on
1 April 2009, provides generally for the ―regulation of the price and quality of goods or services in markets where there is little or no competition and little or no likelihood of a substantial increase in competition‖.2 Part 4 provides four types of such regulation: information disclosure, negotiate/arbitrate, default/customised price- quality, and individual price-quality.3
[3] Part 4 regulation is generally imposed on particular goods and services by Order in Council on the recommendation of the responsible Minister following an inquiry by the Commission. Electricity lines services (including as provided by Transpower, Powerco and Vector) and gas pipeline services (including as provided by Vector) are, however, made subject to Part 4 regulation by subparts 9 and 10 of Part 4 without the need for any such inquiry.
[4] Once a relevant Order in Council is made, s 52P generally requires the
Commission to make determinations (―s 52P determinations‖) setting out, for each
type of regulation to be imposed under Part 4, how that regulation will apply,
1 All references in this judgment to sections are to sections in the Commerce Act unless otherwise stated.
2 Section 52.
3 Section 52B(2).
including stipulating relevant input methodologies.4 Input methodologies are, also generally, determined as part of the inquiry pursuant to which the Commission recommends that Part 4 regulation be imposed.5 Input methodologies must therefore be determined before s 52P determinations can be made.6
[5] In the case of Part 4 regulation, applied to the Appellants by subparts 9 and
10, pursuant to s 52U the Commission had until 31 December 2010 to determine the relevant input methodologies and in fact published those determinations on
22 December 2010.7 At the same time, ss 54I, 54J, 54K, 55E and 56E set out how
and when the Commission is to make the relevant s 52P determinations and provide for transitional arrangements. Pursuant to those provisions the Act either deemed earlier decisions of the Commission to be s 52P determinations or the Commission has now made or is in the process of making further s 52P determinations for these forms of regulation.
[6] Section 91(1) provides what has traditionally been regarded as a general right of appeal against decisions of the Commission, subject to certain exceptions. Some s 52P determinations, and all IM determinations, are excluded from the s 91(1) appeal right. IM determinations may, however, be challenged by way of appeal to the High Court pursuant to s 52Z. The appeal provided by s 52Z is a qualified appeal on the merits. That is the Court may only allow a s 52Z appeal if it is
satisfied that the amended or substituted input methodology is or will be materially
4 Input methodologies are the methodologies, procedures and rules pursuant to which the various types of regulation provided by Part 4 are applied to suppliers of regulated goods and services. Their purpose is to promote certainty for suppliers and customers as regards the application of Part 4 regulation. Input methodologies related to particular goods or services must include, to the extent applicable to the type of regulation under consideration and, amongst other things, methodologies for evaluating or determining the following matters in respect of the supply of the goods or services:
(a) cost of capital;
(b) valuation of assets;
(c) allocation of common costs; and
(d) treatment of taxation.
5 Sections 52I(2)(a) and 52K(2)(c).
6 As, however, Part 4 control was imposed directly on Transpower, Vector and Powerco (and others), specific provision needed to be made to establish how and when the Commission was to
determination relevant input methodologies and make its s 52P determinations as regards that regulation.
7 Section 52U originally required IMs by 30 June 2010. On 10 December 2009, the Minister of Commerce announced his decision to grant the Commission an extension under s 52U(2) of the six months, to 31 December 2010.
better than the one appealed against in meeting the purpose of Part 4 of the Act, the purpose of input methodologies or both.8
[7] Section 91(1B) – the interpretation of which is central to the determination of Transpower’s application – additionally provides, on its face, for an appeal on a point of law against any determination of the Commission, including therefore all s 52P determinations and IM determinations.
[8] The Commission’s decision-making is subject to judicial review in the usual way.
[9] Various s 52Z appeals have been brought against the Commission’s IM
determinations, including by each of the Appellants.
[10] At the same time as it commenced its s 52Z appeals, Transpower also commenced judicial review proceedings to challenge the Transpower IM determinations. Two grounds of review were pleaded:
(a) The first challenged the procedures followed by the Commission.
(b)The second alleged that the Commission had erred in law in failing to take into account Transpower’s individual circumstances in determining its cost of capital input methodology.
[11] In its statement of defence, the Commission said that Transpower’s second ground of review was, in effect and substance, an attack on the merits of the Commission’s Transpower cost of capital IM determination, which was properly the subject of a s 52Z appeal, and was therefore an abuse of process. The Commission subsequently applied to strike out that ground of review as an improper attempt by Transpower to circumvent the appeal process provided for s 52Z appeals. In response, Transpower amended its pleadings to confirm that ground of review concerned an alleged error of law in the Commission’s approach to making the
Transpower cost of capital IM determination. In its statement of defence to that
8 Section 52Z(4).
amended statement of claim, the Commission repeated its abuse of process pleading. The Commission has subsequently advised Transpower that it will apply to strike out that second ground of review from the amended statement of claim as well, if the proceedings go ahead.
[12] Transpower, in response to those indications from the Commission, and aware that Vector and Powerco had not only filed merits appeals under s 52Z but had also filed appeals under s 91(1B), commenced an appeal under s 91(1B) against the Transpower cost of capital IM determination. The terms of that appeal reflect the illegality pleaded by Transpower as its second ground of review. That appeal was, by then, out of time. Transpower made this interlocutory application for leave to appeal out of time. The Commission opposed that application on various grounds. At the hearing of Transpower’s application, the Commission confirmed that it only opposed the grant of leave on one ground, namely that – properly interpreted – there was no jurisdictional basis under the Commerce Act for an appeal under s 91(1B) on a question of law against an IM determination. Rather, such an appeal could only be brought under s 52Z.
[13] By consent, Vector and Powerco were joined as interested parties to Transpower’s application, as the jurisdictional point raised by the Commission will be raised by the Commission in its opposition to Vector and Powerco’s in time s 91(1B) appeals.
Analysis
The issue
[14] Section 91 provides:
Appeals in relation to determinations by Commission
(1) There is a right of appeal to the High Court under this subsection against any determination of the Commission under this Act, other than the following:
(a) a determination, or any part of a determination, made under section 52P (a section 52P determination) that sets out—
(i) how information disclosure regulation or negotiate/arbitrate regulation applies to regulated suppliers; or
(ii) the default price-quality path that applies to regulated suppliers:
(b) an input methodology determination (as defined in section 52Z, and for which a separate appeal right is given under that section).
(1A) An appeal against a section 52P determination may not include an appeal against all or part of an input methodology, whether on a point of law or any other ground.
(1B) There is a right of appeal to the High Court on a question of law against any determination of the Commission under this Act (including a determination referred to in subsection (1)).
[15] As can be seen, subsections (a) and (b) of s 91(1) – by reference to the words
―other than the following‖ – limit the scope of the s 91(1) right of appeal. There is, however, no equivalent or similar limitation expressed in s 91(1B) as regards the right of appeal on a question of law provided by that section. Rather – and as if to emphasise the generality provided by the word ―any‖ – subsection (1B) includes the phrase ―including a determination referred to in subsection (1)‖. Thus, to accept the Commission’s argument that there is no jurisdiction under s 91(1B) for an appeal on a point of law against an IM determination involves – as Vector submitted and the Commission accepted – interpreting s 91(1B) as if it reads as follows:
(1B) There is a right of appeal to the High Court on a question of law against any determination of the Commission under this Act (including a determination referred to in subsection (1)(a) but not including a determination referred to in subsection (1)(b)).
[16] Such an interpretation involves adopting a meaning that, on its face, departs from the plain meaning of the words used by Parliament. I therefore think it appropriate to approach my decision on Transpower’s application by reference to the various bases upon which the Commission argued for that interpretation. In doing so, I will first consider the correct legal approach to that interpretational exercise.
Relevant legal principles
[17] In the course of argument I was referred to various authorities in which Courts had interpreted statutes to resolve an ambiguity, to fill an obvious gap in a statutory scheme and to correct an obvious drafting error to allow purpose to prevail over strict grammatical, or apparent, meaning.9 The principles I take from those cases, and from the various authorities they rely on, may be summarised as follows:
(a) The starting point is s 5(1) of the Interpretation Act 1999:
The meaning of an enactment must be ascertained from its text and in the light of its purpose.
(b)The relationship between text and purpose, and the significance of what may appear to be plain meaning, were commented on by Tipping J in Fonterra:
(i) Even an apparently plain meaning is to be ―cross-checked‖
against purpose:10
It is necessary to bear in mind that s 5 of the Interpretation Act 1999 makes text and purpose the key drivers of statutory interpretation. The meaning of an enactment must be ascertained from its text and in the light of its purpose. Even if the meaning of the text may appear plain in isolation of purpose, that meaning should always be cross-checked against purpose in order to observe the dual requirements of s 5. In determining purpose the Court must obviously have regard to both the immediate and the general legislative context. Of relevance too may be the social, commercial or other objective of the enactment.
(ii)The concept of a plain and ordinary meaning does not involve the Court having regard to external sources such as expert meaning and textbooks – but reference to recognised
dictionaries is of course appropriate.11
9 Northland Milk Vendors Association Inc v Northern Milk Ltd [1988] 1 NZLR 530; Commerce
Commission v Fonterra Co-operative Group Ltd [2007] 3 NZLR 767 (SC).
10 At [22].
11 At [23].
(iii)Where meaning is not plain ―the Court will regard context and purpose as essential guides‖.12
(c) As Cooke P observed in Northland Milk Vendors,13 the Courts will also try to make enactments work by filling gaps in a statutory scheme in a manner consistent with statutory purpose, and in doing so will have to have regard to legislative statements of purpose. But the Courts must not usurp Parliament’s policy-making function. The Courts must therefore be satisfied as to Parliament’s intention before acting in that way.
(d)The situations where the apparent meaning of plain and unambiguous language, or strict grammatical meaning, will yield to a meaning to be found in purpose and context (as is argued for here by the Commission) can be categorised either as the application of the general, s 5(1) principle, or of a more particular rule for correcting obvious drafting errors. Thus:
(i) The Court of Appeal, in passing, recognised the former approach in McKenzie v Attorney-General, observing:14
This illustrates the general principle of statutory interpretation that strict grammatical meaning must yield to sufficiently obvious purpose.
(ii)The more particular rule, which is said to apply when drafting errors have been identified, has been recognised recently in McAlister v Air New Zealand, as noted by the Court of Appeal in Sheehan v Watson:15
... in McAlister v Air New Zealand, Tipping J accepted the proposition from Burrows and Carter Statute Law in New Zealand that the Court can correct a drafting error
12 At [24].
13 At 537.
14 McKenzie v Attorney-General [1992] 2 NZLR 14 (CA) at 6.
15 McAlister v Air New Zealand [2009] NZSC 78, [2010] 1 NZLR 153 at [96-97]; Sheehan v
Watson [2011] 1 NZLR 314 at [37].
by addition, omission or substitution of words if three conditions are satisfied:
(i) the Court must be sure that there is a drafting error;
(ii) the Court must also be sure what Parliament was trying to say; and
(iii) the necessary correction must not involve too great a re-writing of the defective language.
Tipping J noted that such a formulation was supported by the speech of Lord Nicholls in Inco Europe Ltd v First Choice Distribution.16
[18] The Commission argues here that strict grammatical meaning must yield to an interpretation to be derived from purpose and context. Mr Brown for the Commission therefore paid particular attention to the third category of interpretational exercise identified above, and in that regard to two recent cases in which the approach to that exercise has been commented on by the Court of Appeal.
[19] In Ministry of Fisheries v Vu,17 Ms Vu had been convicted in the District Court of aiding and encouraging the illegal purchase of paua from an undercover fisheries officer. On appeal to the High Court she succeeded in an argument that the purchase was illegal. She did so by reference to s 192(10)(c) of the Fisheries Act
1996 which excludes from the offence of purchasing paua from anyone other than a licensed seller (under which Ms Vu had been prosecuted), transactions with the Crown. Duffy J held that Ms Vu’s illegal purchase from the undercover officer was a transaction with the Crown and therefore s 192 did not apply. Her Honour accepted that that conclusion led to unworkable and impracticable outcomes when it came to enforcing the Fisheries Act. However, and on the basis of the Inco authority, she considered the Court did not have scope to interpret the section other than in accordance with its literal meaning.
[20] The Court of Appeal reversed that decision. In considering the issue, which it identified as being whether the literal meaning was the correct meaning, the Court considered the scheme and purpose of the Fisheries Act. It then looked at the specific purpose of s 192(10)(c) within that scheme and observed that ―palpably‖,
the purpose of s 192(10)(c) was not to exempt persons from the offence provisions when they were purchasing from undercover fisheries officers in circumstances that breached s 192, and where they had no idea at all that the other party was the Crown:
―self-evidently, if the offender knew the other party was the Crown, he or she would not enter the transaction‖.18 The Court therefore concluded that adopting the literal meaning would create unworkable situations, and by preventing enforcement activity would undermine the very purpose of the legislation. It was therefore entirely consistent with the purposes and text of the Act to read s 192(10)(c) as being limited to situations where the person seeking to rely on it knew or believed on reasonable
grounds that he or she was transacting lawfully with the Crown. To apply the section literally would ignore the underlying purpose of the provision, interpret the Fisheries Act contrary to its purposes and create a very significant inroad into the implementation of those purposes.
[21] In a passage on which the Commission placed emphasis, the Court of Appeal observed:19
We do not accept, however, that this is a situation to which Inco Europe applies. As noted by Burrows and Carter, the need to ―read down‖ general language and incomplete expressions in conformity with a statute’s context and purpose is a very common issue coming before the courts. In our view, this is not a case of correcting an explicit provision which is clearly a legislative error, as in Inco Europe; or a case where there is a gap in legislation that needs to be filled. It is a more simple case of interpreting the section in light of its purpose and recognising the implications inherent in Parliament’s incomplete and general language. Although not explicitly stated, the limitation we have read into subs (10)(c) is inherent in the provision when viewed in light of the Act and its purposes as a whole, and must have been intended by Parliament.
Here the interpretation we prefer is consistent with the scheme, context and purpose of the Act. It also reads the defence in a manner consistent with the specific defence provision contained in s 241 of the Act. The outcome undoubtedly reflects the intention of Parliament and it prevents a literal interpretation that would seriously undermine the legislation.
[22] Mr Brown’s submission was that, as in Vu, to adopt the interpretation of s 91(1B) the Commission argues for did not involve the Court having to go so far as
to find that the criteria of McAlister and Inco were established. Rather, this was a simple case of interpreting the section in light of its purpose.
[23] In Sheehan v Watson,20 the Court of Appeal came closer to adopting the Inco approach. The case involved the interpretation of ss 268 to 270 of the Property Law Act 2007. These sections exonerate a lessee from liability where premises are damaged as a result of the lessee’s negligence where the lessor is insured. The Court concluded that the scheme of these provisions and their legislative history reflected the economic reality that where a lessor is insured it is the lessee who will pay the cost of that insurance, either directly by an express clause in the lease or otherwise in
the level of rental.21 It was therefore unreasonable to require the lessee to have to
pay again for its own insurance (for the same risk), or to face a claim by the lessor or its insurers. In Sheehan v Watson a lessor’s insurer had sued a lessee’s agents, namely employees of the lessee. But the sections, read literally, only exonerate the lessee. The issue for the Court of Appeal was, therefore, whether the lessee’s agents, including its employees, were protected by the provisions.
[24] The Court reasoned that to apply the express wording of the provisions in a literal sense would frustrate the object of the legislation. The Court could therefore construe the reference to the lessee as also being a reference to the agents of the lessee, as it was satisfied that if the situation that had occurred had been drawn to Parliament’s attention, Parliament would have redrawn the relevant provisions in that way. Not to do so would frustrate the objective of the legislation.
[25] Taken overall, therefore, to adopt the interpretation of s 91(1B) that the Commission contends for I need to be satisfied that to do otherwise would – in a significant way – run counter to the scheme of the Commerce Act, in particular the scheme for appeals against Part 4 decisions, and IM determinations in particular, provided by ss 91(1), 91(1B) and 52Z. Moreover, I need to be satisfied that if the matter had been drawn to Parliament’s attention, Parliament would have amended s 91(1B) in the manner contended for.
[26] I also think it is appropriate to note the strength of the argument for the relevant alternative interpretations that, for example, the Court was able to find in cases such as Vu and Sheehan v Watson. In Vu, the Court of Appeal variously concluded that not to adopt the interpretation argued for was ―palpably‖ not consistent with the scheme of the statute, ―undermines the very purpose of the legislation‖ and created ―a very significant inroad into the implementation of those purposes‖. At the same time, the Courts have been ―sure‖ that the alternative interpretation is one which, if Parliament had turned its mind to the matter, it would have adopted.
[27] In undertaking the interpretational exercise also I acknowledge and largely accept the submissions Mr Hodder, for Powerco, made to me. He noted first that in approaching the task of statutory interpretation the principal focus must be on the language actually enacted by Parliament in the context of the structure and purpose of the enactment. He referred to Skycity Auckland Ltd v The Gambling Commission where, writing for the Court, O’Regan discouraged extensive reference to Cabinet
materials.22
[28] Mr Hodder also emphasised that here I needed to be mindful that the interpretation the Commission was asking for would take away a right of appeal which, on its face, the Commerce Act gave to the Appellants. That was the right to come to this Court in the ordinary way and ask this Court to exercise its normal supervisory jurisdiction as regards the legality of acts of the Executive and other regulatory authorities. The Court should be particularly careful to read down a provision when to do so would have that effect. Mr Hodder also emphasised that, in cases such as Northland Milk and McKenzie, the interpretational exercises undertaken by the Court were less radical than was asked for here. In Northland Milk, in particular, the Court of Appeal had placed that case in a somewhat special character. That character was a reference to that period in New Zealand’s economic and political history when Parliament was enacting a significant amount of reformatory legislation, making ―sweeping changes‖, where from time to time
problems that had not been expressly provided for and possibly not even foreseen
22 Skycity Auckland Ltd v The Gambling Commission [2008] 2 NZLR 182 at [39]-[42] and again at
[52]-[53].
had arisen. Thus Northland Milk was, as the Court of Appeal itself termed, ―another illustration of a hiatus which the Court can legitimately and should bridge‖. This, Mr Hodder submitted, was not such a case.
[29] Whilst I accept the matters referred to by Mr Hodder are relevant to the interpretational exercise called for by the Commission’s argument, at the same time I think the direct question I must answer is whether, as the Commission submits, and either in terms of a standard interpretational exercise of the sort the Court of Appeal said it was carrying out in Vu, or the more particular exercise undertaken in Sheehan v Watson in response to what may be categorised as a drafting error, s 91(1B) is to be interpreted so as to preclude appeals under that section against an IM determination on a point of law. Clearly, the Court needs to be very careful, however it approaches the matter, before concluding that a statute should be interpreted other than in accordance with the plain, grammatical and – here I venture so far as to suggest – obvious meaning of its words.
The Commission’s argument
[30] The Commission argued that it was clear that there was no jurisdiction under s 91(1B) to bring an appeal against an IM determination because:
(a) the Act creates a separate and distinct statutory code for input methodologies, which includes a right of appeal, provides for the appeal process and determines the status of input methodologies pending the outcome of the appeal;
(b)the provisions in the Act that generally provide for appeals against determinations by the Commission recognise that input methodologies are subject to a separate and distinct code and expressly exclude appeals against IM determinations; and
(c) to interpret s 91(1B) as giving a right of appeal against IM
determinations would lead to a number of anomalous consequences
that would undermine the distinct appeal process intended to apply to
IM determinations.
[31] In addition, the Commission argued that that was the proper interpretation of s 91(1B) and was consistent with the legislative history of the section. It is to that legislative history that I turn first, as I think it provides a useful starting point for a consideration of the Commission’s argument.
Legislative history
[32] The general purpose of the Commerce Act is ―to promote competition in
markets for the long-term benefit of consumers within New Zealand‖.23 Parts 2 and
3 of the Act are designed to protect the market process from contractual or market structures which hinder or undermine the incentives for firms to invest and innovate, lower their costs and prices, and improve quality so as to gain custom and generate profits. Part 4 recognises, however, that there are sectors of the economy, that is markets, in which competition cannot and/or does not readily occur and where market-based incentives cannot be relied upon to secure those economic outcomes. As regards such markets, Part 4 – traditionally through the imposition of price control – provided a remedial mechanism designed to restrict the ability of firms, not facing the workability of potential competition, from acting in a manner that was inconsistent with competitive outcomes, and therefore the long-term benefit of
consumers.24
[33] In January 2008 major reform of the Part 4 provisions was recommended to Parliament in the form of the Commerce Amendment Bill. As relevant here, the Explanatory Note to the Bill commented that one of the reasons why Part 4 required amendment was that ―the accountability regime for the Commission is limited (primarily judicial review)‖.
[34] That comment reflects the history of the Act and, in particular, of the right of appeal provided by s 91.
23 Section 1A.
24 Thomas Gault (ed) Gault on Commercial Law (online looseleaf ed. Brookers).
[35] Since its enactment, the Act has provided what appears to be a broad right of appeal. Thus, s 91(1) first read:
(1) Subject to sections 92 to 95 of this Act, and to subsection (2) of this section, there shall be a right of appeal against any determination of the Commission in respect of any matter under this Act.
[36] Section 91(1) was generally understood to provide for an appeal by way of re-hearing,25 not de novo, as those concepts were, prior to Austin, Nichols,26 understood. Reflecting the nature of the right, s 93 gave the High Court broad dispositive powers. In determining s 91 appeals, the Court could ―confirm, modify or reverse‖ the Commission’s determination or any part of it, and exercise any power the Commission could have. At the same time, s 94 separately gave the High Court
the power to refer matters back to the Commission for reconsideration.
[37] It is important to understand the scope – over time – of that right of appeal as
it relates to the Commission’s role in Part 4 controls.
[38] When first enacted in 1986, Part 4 provided for what might now be called
―simple‖ price control. Price control was imposed by the Governor-General by Order in Council on the recommendation of the Minister. The Commission’s principal role under Part 4 was to undertake inquiries into whether particular goods or services should be subject to price control. No determination by the Commission was involved, so the general right of appeal against ―any determinations of the Commission in respect of any matter under this Act‖ provided by s 91 did not apply
to the decision-making process whereby price control was imposed.27 Judicial
review was available in the normal way.
[39] The ―bite‖ of the price control regime was found in s 55 (Part 4), which required controlled goods and services to be supplied at authorised (maximum,
actual or minimum) prices. Under s 70 (Part 5), the Commission determined those
25 See, for example, Power NZ Ltd v Mercury Energy Ltd [1996] 1 NZLR 106 at 112.
26 Austin, Nichols & Co Ltd v Stichting Lodestar [2007] NZSC 103.
27 When first introduced, s 93 of the Act gave the High Court power to confirm, modify or reverse the Commission’s determination or any part of it and to exercise any of the powers the Commission could have exercised.
authorised prices. At that point the section 91(1) appeal right applied to s 70 determinations.
[40] The general right of appeal against ―any determination‖ of the Commission was, it would appear, first limited in 2001 when the concept of ―thresholds‖ was introduced. The Commerce Amendment Act 2001 moved away from control based on authorised prices, to a broader approach based on the control of all or any of prices, revenues or quality standards. At the same time, the Commission was empowered to advise the Minister on ―thresholds‖ that would assist in determining whether goods or services should be controlled. Once goods or services were controlled, it was, again, the Commission’s task to authorise under s 70 the relevant prices, revenues or quality standards at which they could lawfully be supplied. The Commission was able to determine its approach as to how it expressed s 70 authorisations. It could include the use of ―formulas or other methods [the precursors of input methodologies] from which prices and revenues ... may be
determined‖.28 Section 70 authorisations were at that time specifically excluded
from the s 91(1) general right of appeal. At the same time, however, a limited – case stated on a point of law – appeal right against s 70 determinations was provided. Section 24 of the Commerce Amendment Act 2001 provided as follows:
(1) Section 91 of the principal Act is amended by repealing subsection
(1), and substituting the following section:
―(1) Subject to sections 92 to 95, and to subsection (2),─
―(a) there is a right of appeal to the High Court against any determination of the Commission under this Act that is not a determination of the commission under section 70:
(b) there is a right of appeal to the High Court by way of case stated for the opinion of the Court on a question of law only against any determination of the Commission under section 70.‖
[41] At the same time s 93 was consequentially amended by excluding such a case stated appeal from those to which broad dispositive powers provided by that section
applied:29
28 Section 70(2).
29 Commerce Amendment Act 2001, s 24(2).
Section 93 of the principal Act is consequently amended by inserting, after the word ―appeal‖ in the first place it appears, the words ―(other than an appeal under s 91(1)(b))‖.
The ability to refer back provided by s 94 applied, however, on its unamended terms to s 91(1)(b) question of law appeals.
[42] The amendment to s 93 is not without significance, as it indicates that where there was an appeal on a case stated, the High Court is limited to answering the question of law put to it and/or referring the determination back to the Commission. It has no more general dispositive powers.
[43] Section 91 was further amended by the Commerce Amendment Act (No 2)
2001, which introduced to Part 4 industry-specific control of the electricity industry, including Transpower. In the case of large electricity lines businesses, s 57F gave the Commission the power to impose control by declaration (not the Minister by Order in Council). At the same time the Commission was required to set thresholds which, if breached, would lead to such control being declared. In the case of Transpower, the Commission could be required to authorise Transpower’s pricing methodology pursuant to s 57P. In the case of both large electricity lines businesses and distributors, information disclosure was introduced. For that purpose, the Commission was required, under s 57ZB , to audit and approve valuations of assets.
[44] All of those ―new‖ Commission determinations were excluded from the s 91 appeal rights, and only s 57P determinations were included in the s 91(1)(b) ―case stated‖ appeal right. As so amended, s 91 provided:
―(1) Subject to sections 92 to 95, and to subsection (2),─
―(a) there is a right of appeal to the High Court against any determination of the Commission under this Act other than─
―(i) a declaration under section 57F:
―(ii) an authorisation under section 70 or a provisional authorisation under section 71:
―(iii) an authorisation under section 57P concerning
Transpower’s pricing methodology:
―(iv) a decision of the Commission whether or not to approve a valuation report under section 57ZB:
―(b) there is a right of appeal to the High Court by way of case stated
for the opinion of the Court on a question of law only against─
―(i) an authorisation under section 70 or a provisional authorisation under section 71:
―(ii) an authorisation under section 57P concerning
Transpower’s pricing methodology.‖
[45] Section 4(2) of the amending Act provided for s 93 to be consequentially amended by inserting, after the word ―appeal‖ in the first place where it appears, the words ―(other than an appeal under section 91(1)(b))‖. Given the identical amendment in the earlier 2001 Amendment Act, that change would appear to have been unnecessary.
[46] At this point, it can be seen that something of a pattern is emerging. That is:
(a) decisions of the Commission under Part 4 implementing significant aspects of Part 4 regulation are being excluded from the s 91(1) general right of appeal;
(b)in some – but not all – instances, the notable exception being declarations of control under s 57F, a case stated appeal right is provided;
(c) the s 93 dispositive powers are not available on those case stated
appeals, the Court’s power being to refer back as provided in s 94; and
(d) judicial review is generally available.
[47] Section 91 was amended again in 2004 when responsibility for Transpower’s pricing methodology was shifted from the Commission to the Electricity Commission. Consequential amendments repealed subparagraphs (iii) of s 91(1)(a) and (ii) of s 91(1)(b). Section 91 remained in that form until the passing of the 2008 amendments.
[48] Thus, at the time of the introduction of the Bill and as observed in the
Explanatory Note, judicial review was the only basis upon which what was in many
ways the Commission’s most significant decision-making power under Part 4, namely a s 57F determination declaring goods and services supplied by large electricity lines businesses to be controlled, could be challenged. Responding to the conclusion recorded in the Explanatory Note that, given the limited nature of the Commission’s accountability regime there was need for amendment, the Bill proposed new accountability mechanisms. The Explanatory Note commented on
those new accountability mechanisms in the following terms:30
Merits review
Because of the importance of input methodologies, the Bill makes provision for merits review of input methodology determinations by the Commission. This is in the form of an appeal to a High Court judge assisted by 2 expert lay members (in most circumstances). The appeal provides accountability for the Commission, helps ensure that input methodologies deliver on the purpose statement, and promotes business confidence.
Submitters and the Select Committee are invited in particular to consider whether there should be specific criteria for such appeals. The Bill as drafted provides for a right of general appeal by way of re-hearing. This is in line with other parts of the Act and would allow the High Court to apply well-established principles when considering and deciding such appeals. It can be argued, however, that specific and narrower criteria may be appropriate to help reduce gaming risks and to help ensure that only Commission decisions that are unreasonable (rather than unsatisfactory in the view of the Court) are overturned.
The Government gave careful consideration to whether merits review should also be available on final decisions of the Commission applying to individual firms. The pros and cons of merits review are set out in the Regulatory Impact Statement attached to this Bill. On balance, after taking into account costs and gaming risks, and the availability of merits review on input methodologies (which are the detailed decision-rules), the Government decided to limit appeals to points of law. Firms will also have judicial review available to them.
[49] The Regulatory Impact Statement reflected those comments, noting that
―providing for merits reviews of Commission decisions on input methodologies‖
was a key amendment.31
[50] As introduced, the Bill provided:
(a) in what became s 52Z, a right of appeal against IM determinations;
30 Commerce Amendment Bill 2008 (201-1) (explanatory note) at 7.
31 Ibid, at 15.
(b)in s 91(1) a right of appeal against any determination of the Commission, other than s 52P determinations and IM determinations; and
(c) in what became s 91(1B), a right of appeal on a point of law against any determination of the Commission.
[51] As set out in the Explanatory Note, submitters on the Bill were asked to consider whether appeals against IM determinations should be the subject of specific criteria. Changes to reflect submissions on that matter, and a number of other issues, were reflected in the Bill as reported back and ultimately passed.
[52] The commentary on the Bill as reported back from the Commerce Committee relevantly observes:32
Appeals
Appeal on input methodologies
New section [52Z] (clause 4) of the bill as introduced allows any person who has an interest in an input methodology determination the right to appeal to the High Court against the determination. We recommend amending new section [52Z(4)] to provide clearer guidance to the High Court on its role in considering appeals on input methodologies. In particular we recommend allowing the High Court to amend or substitute a new input methodology only if it would be ―materially better‖ in achieving the purpose statements in new sections 52A and [52R].
...
Stages of appeal
Most submitters argued that appeals should be permitted against final decisions by the Commission. However, they differed as to whether such appeals should replace appeals on input methodologies, or be available in addition to them.
We have concluded that there is a good case for allowing appeals on the final decisions of the Commission on customised and individual price-quality paths. We also recommend retaining the right to appeal on input methodologies. As input methodologies would affect all parties, not just those subject to customised or individual price-quality paths, certainty on the rules as soon as possible would be essential for investment in infrastructure with long-life assets. We consider that if input methodologies could be appealed only in the context of final decisions, there would be considerable delays in finalising input methodologies, appeals would be much more
32 Section references amended for clarity’s sake to refer to relevant sections of the enacted
legislation.
complicated, and there would be a risk of persisting uncertainty because decisions on the rules would be case-specific.
We were concerned about possible gaming risks associated with allowing appeals on input methodologies and certain final decisions. New section 53 provides that input methodologies cannot be stayed while under appeal, and we recommend an amendment to new section 95 of the Act to achieve the same with respect to appeals against appealable final decisions.
[53] Reflecting the Select Committee’s reference to s 52P determinations as final decisions, s 91 as reported back and enacted:33
(a) as regards s 52P determinations, no longer excludes those applying customised and individual price paths from the s 91(1) right of appeal;34
(b)still excludes IM determinations from those which may be appealed under the s 91(1) right of appeal, and refers to the separate, s 52Z, appeal right;
(c) includes a new provision (s 91(1A)) making it clear that to the extent appeals are now allowed against s 52P determinations, such appeals may not challenge an input methodology, whether on a point of law or any other ground; and
(d)retains in s 91(1B) a right of appeal on a question of law against any determination of the Commission, including any determination referred to in subsection (1).
[54] The Commission’s proposition is that the legislative history of the amended s 91 pointed towards a clear intention that appeals against IM determinations were to be excluded from the ambit of that section. In this context, there are, in my view, a number of very clear features of the legislative history:
(a) the Commission’s accountability mechanisms as regards Part 4 decisions were weak and needed strengthening;
33 See [14] for the text of the section.
34 The combined effect of ss (a)(i) and (ii).
(b)the provision of a right to appeal on the merits against input methodologies, albeit as finally enacted circumscribed by the
―materially better‖ standard, was a key amendment;
(c) that appeal right was, from the outset, provided separately from the s 91(1) appeal right; and
(d)a general right of appeal on a point of law, separate from the right of appeal provided by s 91(1), was included for the first time.
[55] This approach would appear to reflect the Executive’s and the Select Committee’s apparent conceptualisation, as reflected in the Explanatory Note and the Commentary respectively, of both ss 91(1) and 52Z appeals as general appeals on the merits.35 Appeals against s 52P determinations and IM determinations were initially both excluded from the general appeal right under s 91(1) by ss 91(1)(a) and (b) respectively. Merits review for appeals against IM determinations was separately provided for in s 52Z. Section 91(1)(a) was subsequently amended to extend the general right of appeal provided by s 91(1) to appeals on s 52P determinations on
customised and individual price-quality paths, by limiting the scope of its exclusion.36
[56] Reflecting that analysis, the most obvious point of distinction in the drafting of the old and new s 91 is the difference in approach between the right of appeal provided by s 91(1) and the right of appeal on a question of law found in s 91, initially in s 91(1)(b) and now in s 91(1B). As already noted, the s 91(1) right of appeal, at least to the time of the 2008 amendment, was itself seen as a general right of appeal by way of re-hearing, and therefore one which could be advanced by reference to questions either of law or fact. The generality of that right was, in my view, emphasised by the way in which, up until the 2008 amendments, appeals by
way of case stated on a question of law were separately provided against some, but
35 The Explanatory Note refers to appeals against ―final decisions of the Commission applying to individual firms‖ as merits review, differentiating that from appeals on points of law. It further emphasises that ―because of the importance of input methodologies, the Bill makes provision for merits review of input methodology determination‖ (at 7).
36 Commerce Amendment Bill 2008 (2012-2) (as reported from Commerce Committee) at 5 ―We have concluded that there is a good case for allowing appeals on the final decisions of the Commission on customised and individual price-quality paths‖.
not all, of the Commission determinations which were excluded from the general right of appeal provided by s 91(1). Section 91(1B), as originally provided for in the Bill as introduced, and as retained in the Bill as reported back and enacted, by way of contrast provides a right of appeal on a point of law against any determination of the Commission, and refers to determinations excluded from the s 91(1) right of appeal by way of express inclusion. That approach was adopted at the outset of the drafting of the new Part 4 and related provisions and would therefore – at least on its face – appear to have been a deliberate choice in the drafting process. Thus in s 91(1B), the Act adopts quite a different approach from that which it had previously done. That is, in its previous iterations the limited, case stated question of law, appeal right can be seen as restoring, albeit on a limited basis, the right of appeal that had been taken away by the exclusions from what is now the s 91(1) right of appeal. Now, a parallel approach has been adopted. Understood generally, the scheme of the Act provides for merits appeals against determinations, including some s 52P determinations, under s 91(1), qualified merits appeals against IM determinations under s 52Z, and appeals on a point of law against any determination under s 91(1B).
[57] Based on that analysis, I am unable to accept the Commission’s proposition that the legislative history points towards a clear intention that appeals against IM determinations on a point of law were to be excluded from the ambit of s 91(1B).
[58] Furthermore, the general proposition that in some way s 91(1B) represents a drafting error, acknowledging that it was not on that basis that the Commission submitted I should consider the question of interpretation here, is not supported by the consistency of the drafting approach to s 91(1B). That consistency includes the very specific way all s 52P determinations and IM determinations were first excluded from the right of appeal under s 91(1), and how the drafting was further specifically and carefully amended to allow for some s 91(1) appeals against s 52P determinations, but not others, whilst all the time retaining s 91(1B) unamended.
[59] The Commission more particularly suggested that a reference in the ―Clause by Clause‖ analysis contained in the Explanatory Note supported its proposition as to the interpretation of s 91(1B). Cited in full, that passage reads:37
Section 91(1)(b) presently provides that there is a right of appeal, by way of case stated for the opinion of the Court on a question of law only, against authorisations given under section 70 or 71. New section 91[1B] replaces this with a general right of appeal to the High Court on a point of law against any determination of the Commission. An effect of new section 91(1) and (1B) is that the only form of appeal against a section [52P] determination is an appeal on a point of law.
[60] The Commission’s argument was that the last sentence reflected that s 91(1B) (as it later became) did not provide an appeal on a point of law against IM determinations. In my view, that is not an obvious conclusion. I note first the reference in the text to s 91(1B) providing ―a general right of appeal to the High Court on a point of law against any determination of the Commission‖. The use of the word ―any‖ is against the Commission’s submissions. The reference to s 52P determinations is that an effect of the new section is that the only form of appeal against such a determination is an appeal on a point of law. The meaning of that sentence is clear, it is an accurate description of one of the effects of s 91(1B) and neither states nor implies that appeals on points of law against IM determinations may only be brought under s 52Z.
[61] Therefore, my consideration of the legislative history of ss 52Z and 91, within the broader context of Part 4, does not enable me to conclude, as the Commission submitted, that that history points towards a clear intention that IM determinations were to be excluded from the ambit of s 91(1B).
Sections 52Z to 53: a separate and distinct code for appeals against
IM determinations?
[62] The Commission’s principal argument, for which it looked to the legislative history for support, was that ss 52Z to 53 were a code for all appeals under the Commerce Act against IM determinations, including appeals on a point of law, and
that therefore s 91(1B) is properly to be interpreted as not extending to such appeals.
37 Section references amended for clarity’s sake to refer to relevant sections of the enacted
legislation.
[63] In arguing that those provisions constitute a code, Mr Brown noted:
(a) That those provisions appear under a heading ―Appeals against input methodology determinations‖, which on its face would include both merits and point of law appeals.
(b)That s 52Z(1) determines the persons who may appeal to the High Court against an IM determination. There is no specific or separate reference in s 92, which deals with who may generally appeal Commission determinations under the Act, to who is entitled to bring a point of law appeal under s 91(1B) against an IM determination. There is, however, a reference in s 92 to who may bring an appeal against a s 52P determination. This is a very clear indication that it was not intended appeals against IM determinations could be brought under s 91(1B).
(c) Similarly, s 52Z(3) sets out the Court’s powers in determining s 52Z appeals in a way which is similar to but which replaces the provisions of ss 93 and 94 as regards s 91 appeals generally.
(d)Again, similarly, s 52Z(6) specifically provides for rights of appeal under s 97 to the Court of Appeal only on points of law from High Court decisions on s 52Z appeals.
[64] Mr Brown also pointed to a number of the provisions of ss 52Z to 53 whereby quite a different approach is taken as regards s 52Z appeals compared to s 91 appeals. Thus:
(a) Significantly, and as introduced by the Select Committee, s 52Z(4) provides that the Court may only allow an appeal against an IM determination if it is satisfied that the amended or substituted input methodology is or will be materially better in meeting either the
―promote certainty‖ purpose of s 52R, the purpose of Part 4, or both,
thus creating a significant limit on the Court’s power in disposing of appeals against IM determinations.
(b) In s 52ZA a number of specific process rules are stipulated:
(i)Appeals under s 52Z must be brought within 20 working days and, in contradistinction to the equivalent s 91(2) – which has always contained a 20 working day rule for appeals against determinations – the Court is not given jurisdiction to allow further time.
(ii)Pursuant to s 52ZA(2), a s 52Z appeal must be by way of re- hearing and must be conducted solely on the basis of the documentary information and views that were before the Commission when it made its determination, and no party may introduce any new material during the appeal. That rule does not apply to s 91 appeals, where the High Court Rules as to the introduction of new material are applicable.
(iii)In s 52Z appeals, the High Court must sit with two lay members, as opposed to the general requirement under s 77(9) where one lay member is necessary to constitute a sitting of the High Court (exercising its appellate jurisdiction). At the same time, s 52ZA(5) specifically applies s 77(14) to s 52Z appeals, so that any question of law raised by such an appeal (and therefore s 52Z appeals must be able to extend to questions of law) may be decided by the Judge sitting alone.
(iv)In s 53(1), the specific provision is that the High Court may not stay the implementation of a input methodology until any appeal against it is finally determined. This is different to the general provision in s 95 that appeal decisions remain in force pending determination of the appeal, unless the Court orders to the contrary.
[65] Removing discretionary powers given to the Court by ss 91(2) and 95 to extend the time for appeal and to stay an appealed determination reflected a clear intention that appeals against IM determinations should be dealt with expeditiously.
[66] The Commission’s argument was that it would not make sense for those specific substantive and process rules to apply to the s 52Z appeal right, but not to a separate appeal right, albeit on a point of law, under s 91(1B). Those rules reflected important decisions regarding the nature and scope of appeal rights against IM determinations. It would therefore be inconsistent with the scheme of the Act, and contrary to its purpose, to interpret s 91(1B) as allowing a point of law appeal not subject to those processes. If such an appeal right had been intended to be provided by s 91(1B), it would have been similarly limited.
[67] Applying all of those constraints to appeals on points of law against IM determinations, as would be the outcome of adopting the Commission’s argument on interpretation, was also consistent with the overall policy of the Act as regards Part 4 matters. That policy being that merits appeals against IM determinations should be brought and disposed of as quickly as possible, that those appeals should be argued on a closed record and that the Court’s powers should be appropriately limited in terms of the ―materially better‖ standard.
[68] I acknowledge, as is obviously the case, that these provisions create a series of specific rules for appeals against IM determinations under s 52Z. They reflect, in particular, the early decision that to avoid gaming of the consultation process for IM determinations there should be a closed record for such appeals and that, as recommended by the Select Committee, the later decision that the High Court’s power should be restricted to only allowing an appeal where the ―materially better‖ threshold is met.
[69] I also acknowledge the apparent logic, from the point of view of a consistent policy as regards appeals against IM determinations, that all such appeals – whether on a point of fact or law, whether on the merits or otherwise – be subject to the same procedural and substantive rules. Moreover, and as questions of law may be argued in a s 52Z appeal, is there any need for a separate such appeal under s 91(1B)? In
this context I refer again to what I conclude is a somewhat unusual approach as regards the parallel provision of s 91(1) appeals against Commission determinations, except now as well understood, and s 91(1B) appeals on a point of law against any determination, including those same exceptions. I am, I note, unable to accept Mr Butler’s submission that this reflected a modern drafting approach, noting that I was not referred to any other examples of that approach.
[70] It is therefore necessary to consider the Commission’s submissions with some care, and determine whether they do result in my being appropriately satisfied that here an apparent, plain or grammatical meaning, must cede to an interpretation based on context and purpose, and as to what the Commission suggests Parliament meant that interpretation to be.
[71] Considering each of the matters on which the Commission relied in turn:
(a) The ―materially better‖ standard reflects a conclusion that, although merits review of the substance of the Commission’s IM determinations was appropriate to improve the weak (judicial review) accountability regime,38 the Court’s ability to allow such appeals should be constrained. This was seen by the Minister as a ―sensible criterion to apply where we have an expert body, but where it is essentially the rule maker and the regulator‖.39 Where the question is one of law, and not of substantive merit, however, the Commission does not have that particular expertise – rather the Courts do. Moreover, subjecting appeals on a point of law to a materially better standard – which is addressed at merits – is more than a little anomalous. If an IM determination is unlawful, it is unlawful. As
s 94 reflects, the role of the Court is to identify the illegality and if necessary refer the matter back to the Commission for
reconsideration.
38 Regulatory Impact Statement at 17-18.
39 (2 September 2008) 629 NZPD 18313.
(b)Merits appeals under s 52Z proceed on the basis of a closed record, particularly to avoid gaming of the consultation process. I am not persuaded that there is any material risk that that policy would be subverted if point of law appeals were allowed pursuant to s 91(1B), and therefore not subject to the ―closed record‖ provision. As the appeal is on a point of law, there would appear to be little scope for additional evidence going to merits.
(c) On the issue of the Court’s power, or otherwise, to stay a Commission determination pending the outcome of an appeal, it is not clear to me that, properly interpreted, the Act provides the Court with a power to stay IM determinations when they are subject to a point of law under s 91(1B). Section 53(1) provides that the Court may not stay the application of any IM pending the determination of ―any appeal‖. I think the use of the words ―any appeal‖ in s 53(1) is significant, and is to be distinguished, for example, to the reference in s 52ZA(1) to ―any appeal under s 52Z‖. Interpreting s 53(1) in light of the scheme and purpose of the Act, I think the appropriate conclusion is that it applies
– as it says – to ―any appeal‖ against an IM determination including
those under s 91(1B) as well as those under s 52Z.
(d)That the Court would, if point of law appeals are allowed under s 91(1B) retain a discretion under s 91(2) to extend the time for bringing such an appeal is, perhaps, inconsistent, given that both appeals are against IM determinations. Having said that, I am not persuaded that that degree of inconsistency is particularly significant.
[72] Taken overall therefore, and in light of the clear wording of s 91(1B), whilst I acknowledge that the scheme of ss 52Z-53 is, generally, to describe separate substantive and process rules for merits appeals under s 52Z, my consideration of those implications of allowing point of law appeals under s 91(1B) does not lead me to conclude that to do so would run significantly counter to the scheme and purpose of the Act.
[73] The Commission also identified what it said were a number of perhaps less significant, but also anomalous, consequences of interpreting s 91(1B) as providing for point of law appeals against IM determinations.
[74] The Commission pointed first to s 92, which – generally by reference to the scheme of Part 5 – sets out persons entitled to exercise appeal rights under s 91(1). There is no reference in s 92 to persons who may intend to bring a point of law appeal against an IM determination under s 91(1B). The section does, however, provide who may bring point of law appeals under s 91(1B) against s 52P determinations.40 This was, therefore, a strong indication of Parliament’s intention.
[75] I acknowledge that gap in the drafting of s 92. A similar gap arose when the Act was again amended in 2001, by introducing electricity industry-specific provisions into Part 4. At that time, s 91(1)(b) was amended so as to provide a right of appeal on a point of law against an authorisation under s 57B concerning Transpower’s pricing methodology. No amendment was made to s 92 setting out who could exercise that right of appeal. Nor is it obvious that only Transpower could exercise that right of appeal, given that the statute recognised that persons other than Transpower were affected and therefore should be consulted. In terms of an approach to the interpretation of the statute which would close that gap, I think that to do so by reference to the persons entitled to exercise the s 52Z right of appeal would be one which is consistent with the overall scheme and purpose of the legislation, and is a more appropriate response to that gap than to rely on it in any material way to interpret s 91(1B) as the Commission says it should be.
[76] The Commission argued similarly that interpreting s 91(1B) to allow a point of law appeal against an IM determination created a further anomaly in terms of the drafting of s 97(5). Section 97(5) was added to s 97 in 2008. Section 97 has traditionally provided a right of appeal, with leave, to the Court of Appeal against decisions of the High Court against determinations of the Commission. Subject to
leave, that would appear to be a general right of appeal. Subsection (5) now limits
40 Section 92(d) provides that ―in the case of an appeal against a determination made under section
52P, any supplier or consumer (as defined in section 52C) of goods or services to which the determination relates‖ may exercise the right of appeal pursuant to s 91.
that right of appeal to an appeal only on a point of law against decisions of the High Court under s 52Z, and on appeal under s 91(1) or (1B) against a determination of the Commission made under s 52P. It was the Commission’s argument that the failure to refer to decisions of the High Court on appeal under s 91(1B) against IM determinations counted against such a right of appeal existing. In my view, and as submitted by the appellants, there is an alternative, and reasonably straight forward explanation for the drafting of subsection (5) of s 97. That is, an appeal to the Court of Appeal against a decision of the High Court on a point of law appeal under s 91(1B) against an IM determination can never be anything else than an appeal on a point of law to the Court of Appeal. The references to s 52Z and appeals against determinations of the Commission made under s 52P can be understood because in both of those instances the appeals can be merits appeals. In that context, the reference to s 91(1B) is best understood as being otiose, rather than – far more significantly – indicating that that appeal right does not apply – as the plain words of the section would have it – to grant an appeal right on a point of law against a s 52U IM determination.
[77] A further point to note in this context is that many if not all of the
―anomalous results‖ that the Commission pointed to in this area potentially arise where judicial review proceedings, which clearly remain available against the Commission’s decisions under Part 4, are brought as regards an IM determination. Given the similarities that can exist between an appeal on a point of law, and judicial review by reference to illegality, this counts against regarding those ―anomalous results‖ as being reasons to interpret s 91(1B) in the manner argued for by Commission.
Result
[78] I therefore find that as a matter of statutory interpretation s 91(1B) does provide for appeals on a point of law against an IM determination separately to the right of appeal provided by s 52Z. On that basis, I therefore grant Transpower’s application for an extension of time to appeal. This decision, having been made on the point of general statutory interpretation, does not determine other challenges that might be brought to Transpower’s appeal, for example whether the appeal is properly
on a point of law. That observation of mine, however, is not to be taken as expressing any view whatsoever on the legal merits of such a challenge. It is intended simply to make clear the effect of this judgment.
“Clifford J”
Solicitors:
Chapman Tripp, Wellington for Transpower
Crown Law Office, Wellington for the Commerce Commission
Russell McVeagh, Wellington for Vector Ltd
Chapman Tripp, Wellington for Powerco
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