AIR NEW ZEALAND LIMITED V NELSON AIRPORT LIMITED HC NEL CIV-2007-442-584

AIR NEW ZEALAND LIMITED V NELSON AIRPORT LIMITED HC NEL CIV-2007-442-584 16 June 2008IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY CIV-2007-442-584UNDER the Judicature Amendment Act 1972 IN THE MATTER OF an application for review BETWEEN AIR NEW ZEALAND LIMITED Plaintiff AND NELSON AIRPORT LIMITED Defendant Hearing: 11 June 2006 Appearances: P R Jagose & R S May for Defendant in support N S Gedye for Plaintiff to oppose Judgment: 16 June 2008JUDGMENT OF WILD J: DEFENDANT'S STRIKE OUT APPLICATION Introduction[1] The defendant, Nelson Airport Limited (NAL) applies to strike out all but the first of the six grounds for review in the statement of claim of Air New Zealand Limited (Air NZ). Air NZ opposes the application. [2] In this proceeding Air NZ seeks judicial review of the decision NAL made on 28 August 2007 setting increased charges effective 1 November 2007 for the use of Nelson Airport and its associated facilities. I will call this NAL's "charges decision". Although it has continued to use Nelson Airport, Air NZ has not been paying the increased part of the charges.[3] Air NZ (to be precise, its wholly owned subsidiary Air Nelson Limited) is a "substantial customer" of NAL for the purposes of s 4B(1) Airport Authorities Act 1966 (the Act). [4] Air NZ alleges, and NAL admits, that the charges decision was made pursuant to s 4A of the Act. [5] Air NZ also alleges that s 4B(1) of the Act required NAL to consult with Air NZ about its proposed user charges, before setting them. NAL responds that its duty to consult was actually with Air Nelson Limited, as its "substantial customer". [6] This proceeding is another in the growing number of challenges by Air NZ to decisions by airports around New Zealand raising user charges. My judgment in Air New Zealand Ltd v Wellington International Airport Ltd (CIV-2007-485-1576 / CIV-2007-485-2221, HC Wellington, 24 April 2008) mentions some of the cases, involving Wellington and Dunedin airports, but there has also been litigation between Air NZ and Auckland Airport. [7] As in the case just mentioned, Air NZ's first ground of review alleges breach by NAL of the duty to consult imposed by NAL by s 4B of the Act. That first ground is the one NAL does not seek to strike out. It accepts it can only be decided upon the evidence at trial. [8] Air NZ's remaining grounds of review are: a) Second: Procedural unfairness; b) Third: Breach of legitimate expectation; c) Fourth: Unreasonableness; d) Fifth: Substantive unfairness; and e) Sixth: Failure to take into account relevant considerations.[9] These broadly "process" grounds for review differ from the "monopoly pricing" grounds I struck out in my judgment mentioned in [6]. [10] For NAL, Mr Jagose had two broad submissions. First, he submitted that NAL's pricing decision was not the exercise of a statutory power or statutory power of decision as defined in s 3 Judicature Amendment Act 1972, and accordingly was not reviewable. He contended this was fatal to each of the 2nd to 6th grounds for review. Mr Jagose accepted that this submission ran contrary to what had been accepted in the "growing number of cases" I refer to in [6], and was novel. For example, in my judgment in Air New Zealand Ltd v Wellington International Airport Ltd, I record:[13] WIAL accepts its charging decision was an exercise of its s4A(1) power to set charges, and thus the exercise of "a statutory power" and "a statutory power of decision" in terms of s3 of the Judicature Amendment Act 1972, and amenable to judicial review.[11] Alternatively, even if NAL's pricing decision was the exercise of a statutory power, Mr Jagose submitted: a) Air NZ's 2 nd to 6th grounds for review seek impermissibly to involve the Court in commercial decision-making. b) Only consultation is at stake here, and Air NZ's 2 nd and 3rd grounds for review add nothing but length and confusion to the first, which permissibly challenges NAL's consultation. [12] I deal with each of these arguments in turn.No statutory power to review[13] This argument was based on the interpretation of the Act, invoking support from dicta in some of the cases. [14] Mr Jagose started with the definitions in s 2 of "airport authority" and "airport company". NAL is an "airport company". Its two local authority owners,the Nelson City Council and the Tasman District Council, comprise an "airport authority", having been duly authorised pursuant to s 3(3), together to operate Nelson Airport. [15] Mr Jagose next referred to s 3(1) which authorises NAL (amongst other things) to:maintain, operate, or manage [Nelson Airport][16] Mr Jagose submitted that the charges decision was made pursuant to these general s 3(1) powers and was a purely commercial action of an owner of assets setting prices for their use, not in itself subject to judicial review. [17] For support for this submission Mr Jagose turned to the Court of Appeal's judgment in Air Nelson Limited v Minister of Transport & Hawke's Bay Airport Authority [2008] NZCA 26. That case involved a decision by the Minister of Transport fixing landing charges for Hawke's Bay Airport, which is owned by a joint venture comprising the Crown, Napier City Council and Hastings District Council. The Minister's decision was made under r 13 Civil Aviation Charges Regulations 1991 (No. 2), themselves made under s 100(1)(a) Civil Aviation Act 1990. In rejecting a submission for the Minister that his decision to increase the landing charges was purely commercial, and not a reviewable public law decision, the Court of Appeal said this:[33] () (b) If the fixing of prices by the Minister were a purely commercial action, it would not have needed to be undertaken by the Minster. The Authority could have fixed the prices within its general power to establish and carry on the airport under s 3(1) of the Airport Authorities Act. Further there is no suggestion that the Minister has made any other business decisions in his putative capacity as part owner; ()[18] Mr Jagose's point was that, absent r 13 and the Minister, a decision by Hawke's Bay Airport to increase its landing charges would be "a purely commercial action", which it could have taken "within its general power[s]under s 3(1) Airport Authorities Act". [19] Mr Jagose accepted that this was only implication. Certainly, in that passage, the Court contrasts the position that was before it, with the position which would have pertained had the decision not been one by the Minister under r 13. But the Court's focus was on the distinctly different factual position before it, and I regard what the Court says there as sparse, if any, support for Mr Jagose's submission that NAL's decision here was one made under s 3(1). For one thing, the Court of Appeal did not mention s 4A, which would surely have featured in any close analysis of its 'counterfactual'. [20] Mr Jagose moved then to s 4. Although this elaborates the s 3(1) powers, it does not do so in a way which includes a specific power to charge. [21] Turning to s 4A, Mr Jagose submitted that this does not contain a charge setting power, and thus cannot have been the power exercised by NAL when making the charges decision. Section 4A provides:4A Charges(1) Subject to section 4B, every airport company may, notwithstanding the provision of any regulations in force under section 38 or section 100 of the Civil Aviation Act 1990, set such charges as it from time to time thinks fit for the use of the airport operated or managed by it, or the services or facilities associated therewith. (2) Any charges set under this section may be charged to persons or classes of persons owning or operating aircraft, or to persons or classes of persons using or otherwise enjoying the benefit of the airport, services, or facilities, or to any other persons. (3) Nothing in section 43 of the Commerce Act 1986 applies in relation to the setting and charging of charges by an airport company.[22] I read s 4A(1) as being precisely what Mr Jagose submits it is not: a charge setting power. The subsection empowers NAL to "set such charges as it from timeto time thinks fit for the use of [Nelson Airport]". If that is not a charge setting power, then I am not sure what is. [23] The thrust of Mr Jagose's submission to the contrary was that s 4A is not a charge setting power because NAL has that power in other statutory provisions. He contended it was in s 3: I have dealt with that in [16] to [29] above. As NAL is an "airport company", registered under the Companies Act 1993, Mr Jagose submitted that it has the power that any such company has to charge for the use of its assets and services. Section 3C of the Act provides:nothing in this Act shall be construed as limiting or affecting the powersthat an airport company has under the Companies Act 1993.[24] But the fact that s 3(1) of the Act may encompass a charge setting power, and/or that such a power is covered by the Companies Act 1993, does not mean that s 4A(1) does not expressly and specifically contain such a power. In other words, the existence elsewhere of general powers that may well encompass the specific s 4A(1) power, does not negate that specific power. At best, it suggests some duplication, though only in adding the specific to the very general. [25] I am unsure why Parliament chose specifically to empower airport companies to set charges, but the likely reason was that Parliament wished to make that specific power subject to the s 4B duty to consult substantial customers before fixing or altering charges. The fact that the one section follows immediately after the other strongly suggests that that is the reason. [26] Supporting that interpretation are the words in s 4A(2) "Any charges set under this section". Confronting the unhelpfulness of that wording to his argument, Mr Jagose sought to sideline it as "clumsy wording" in a subsection focussing on whom could be charged. [27] Mr Jagose submitted that s 4A(3) also supported his submission. By ousting the application of s 43 Commerce Act 1986 to s 4A, it confirmed that s 4A(1) was not a source of charge setting power. I do not agree. Section 43 excepts charge fixing "authorised by any enactment" from the purview of Part 2 Commerce Actwhich deals, relevantly, with anti-competitive pricing. Section 4A(3) provides that s 43 does not apply to charge setting under s 4A(1), with the result that Part 2 Commerce Act does apply to airport charges set under s 4A(1). Mr Jagose accepted that s 4A(3) could be read two ways: a) s 43 does apply to charges set under s 4A(1), and therefore needs to be excluded; or b) s 43 does not apply because s 4A(1) is not a situation caught by s 43, and therefore Part 2 of the Commerce Act applies in its full force. [28] The first of these is the correct interpretation. Section 4A(3) is there to exclude the application of s 43. Its existence further supports interpreting s 4A(1) as the source of NAL's charge setting power. [29] Lastly, on this point, Mr Jagose contended support for NAL's interpretation of s 4A(1) was to be found in two judgments. The first was the Court of Appeal's decision in Wellington International Airport Ltd v Air New Zealand [1993] 1 NZLR 671. Dealing with issues as to landing fees, and in particular with WIAL's duty to consult Air NZ, the Court said this at 682-683:Mr Fardell contrasted the process in this case with the prolonged discussion which had taken place in Christchurch and Auckland, and with the way in which consultation had been carried out by the Airways Corporation. In our view, these are irrelevant. The issue is whether WIAL complied with its statutory duty to consult, not whether it did so in the same matter as other different entities had done.[30] Mr Jagose suggested the last sentence in this passage supported his submission that s 4A(1) was not a source of a charging power. I cannot see that the passage does that at all. [31] The second passage is this one in my judgment referred to in [6]:[22] For three reasons, I accept WIAL's submission that there is no restriction in the Airport Authorities Act on WIAL's power to set charges, beyond the consultation requirements in s4B.[32] Again, and somewhat more confidently here, I reject that this supports Mr Jagose's interpretation. I again draw attention to the concession I had recorded in [13] of my judgment, which I have set out in [10] above. [33] Mr Jagose submitted that if NAL's increased charges were not imposed in exercise of the s 4A(1) power, then to be enforceable they must be contractual. He set about a contractual analysis. But for the s 4A(1) power unilaterally to impose charges, Mr Gedye accepted they would need to be agreed and would be recoverable under the contract. My interpretation of s 4A(1) makes it unnecessary to deal with the contractual argument. [34] To summarise, I hold that the charges decision was made by NAL in the exercise of its power under s 4A(1) of the Act, and is thus reviewable. [35] This first part of NAL's argument fails.Non-justiciable commercial decision-making[36] NAL's primary attack on the 2 nd – 6th grounds for review was that its charges decision is non-justiciable commercial decision-making. In addition, as refined by Mr Jagose in oral submissions, NAL challenges the 2 nd and 3rd grounds as superfluous. I will deal with this additional challenge first.2nd and 3 rd grounds for review superfluous[37] Mr Jagose submitted the 2 nd and 3rd grounds add nothing to the 1 st ground and should be struck out. [38] The 2 nd ground alleges breach by NAL of its duty to act fairly towards Air NZ in exercising its s 4A(2) charge setting power. Examples of the eight particulars given are:(a) From 30 March 2007, NAL did not provide Air New Zealand with a clearly defined timetable or consultation process. (d) NAL represented to Air New Zealand at the 30 March 2007 meeting that it would provide further information to Air New Zealand but it failed to do so before making a decision. (h) NAL did not provide all relevant information at one time but rather produced information in a piecemeal and protracted process throughout the consultation period thereby making it impossible for Air New Zealand to respond to all issues at once.[39] Mr Jagose argued that (a) and (h) relate to the consultation process. While (d) does not expressly refer to consultation, that is essentially what it involves, as do all the eight particulars. [40] The 3 rd ground, claiming breach of legitimate expectation, invokes only the consultation process as giving rise to such expectation. This ground alleges: a) A series of representations made by NAL to Air NZ in the course of the consultation process; b) That those representations gave rise to a legitimate expectation, which is then particularised; and c) That, in breach of that expectation, NAL did – or failed to do – certain things, also particularised. [41] Mr Jagose contends this pleading is circular: to invoke legitimate expectation here pleads nothing more than the accepted s 4B requirement to consult, which trumps any alternative foundation for the expectation. The 3 rd ground is thus superfluous and unhelpful and should also be struck out. Mr Jagose submits the following passage in the judgment of Dawson J in Attorney-General (New South Wales) v Quin (1990) 93 ALR 1 (HCA) at 39 gives authoritative support to this point, indeed neatly encapsulates it:It is when the expectation is of a fair procedure itself that the concept of a legitimate expectation is superfluous and confusing. That is not to say that where the legitimate expectation is of an ultimate benefit the concept is not a useful one to assist in establishing whether a particular procedure is infairness required. But whenever a duty is imposed to accord a particular procedure, it is because the circumstances make it fair to do so and for no other reason. No doubt people expect fairness in their dealings with those who make decisions affecting their interests, but it is to my mind quite artificial to say that this is the reason why, if the expectation is legitimate in the sense of well founded, the law imposes a duty to observe procedural fairness. Such a duty arises, if at all, because the circumstances call for a fair procedure and it adds nothing to say that they also are such as to lead to a legitimate expectation that a fair procedure will be adopted.[42] These are pleading not strike-out points. Mr Jagose confirmed to me in argument that the gravamen of NAL's complaint is the general embarrassment and prejudice in having to face these two grounds, rather than just the 1 st ground which NAL says is the only legitimate one. [43] Mr Gedye's submission that procedural unfairness and breach of legitimate expectation are established grounds for review is unassailable. Indeed, Mr Gedye pointed to the latter being ultimately successful in Waikato Regional Airport Limited v Attorney-General [2001] 2 NZLR 670 (PC) at [143]. That case also concerned airport charges, though its subject matter was distinctly different. [44] Mr Gedye accepts that the first three grounds for review overlap. But I accept his point that such overlap does not invalidate the 2 nd and 3rd grounds as stand-alone grounds for review. [45] I add a word about Attorney-General (NSW) v Quin. Although Mr Jagose relied on the passage I have cited in [41] to support his point that legitimate expectation added nothing to the s 4B consultation requirement, I point out that Quinno longer represents New Zealand law. This country has tended to follow the English lead in R v North East Devon Health Authority, ex parte Coughlan [2000] 2 WLR 622 and R v East Sussex County Council ex Parte Reprotech (Pebsham) Ltd[2002] 4 All ER 58. The most recent considerations of legitimate expectation in New Zealand are, I think, in The New Zealand Association for Migration and Investments Incorporated v Attorney-General [2006] NZAR 45; Staunton Investments Ltd v Chief Executive Ministry of Fisheries [2004] NZAR 68; andChallis v Destination Marlborough Trust Board Inc [2003] 2 NZLR 107. In the first of these cases at 137, Randerson J observed:Although the concept of legitimate expectation (at least in procedural matters) has long been recognised in administrative law, its boundaries are not well settled and it is far from straightforward to apply in practice.[46] For those reasons, I decline to strike out the 2 nd and 3rd grounds as pointlessly superfluous.2nd – 6th grounds: Non-justiciable commercial decision-making[47] The 4 th ground is this:The charges decision was unreasonable and irrational and was a decision which no reasonable airport company would have made, particulars of which are: (a) NAL refused to optimise runway width which was not used or useful and made its charges decision on the basis of the full 45 metre runway width. (b) NAL included, as part of the capital expenditure upon which charges were calculated, $1.2 million for the acquisition of houses within the airport noise zone despite the fact that such acquisitions had not happened, were uncertain and would result in a modest net cost well below $1.2 million. (c) NAL included, as part of the capital expenditure upon which charges were calculated, $1.2 million for the acquisition of houses within the airport noise zone, despite Air New Zealand's having offered to underwrite the house purchases as and when they occurred, which offer was unreasonably rejected by NAL.[48] The 5 th ground similarly fastens upon NAL's alleged failure to optimise runway width (i.e. charging users for 45 metres when only 30 metres width is necessary) and including $1.2 million capex for acquisition of houses in the airport noise zone (expenditure which is avoidable, and has anyway not been incurred). [49] The 6 th ground alleges:18. The statutory scheme contained with Sections 3, 4A and 4B of the Airport Authorities 1996 by necessary implication required NAL to ascertain, and to take into account, the following relevant considerations before making a decision fixing user charges: (a) All potential sources of revenue from charges charged under the Act.(b) The costs required to be covered by the charges. (c) The pricing principles for monopoly businesses set out by the Commerce Commission, inter alia, in its Final Report on the Part IV Inquiry into Airfield Activities at Auckland, Wellington and Christchurch International Airports dated 1 August 2002. 19. In breach of its duty to ascertain and take into account the relevant considerations referred to in the preceding paragraph, NAL did not ascertain, or ascertain to any adequate extent, the relevant considerations set out therein and did not take them into account in making its user charges decision on 28 August 2007.[50] Mr Jagose submitted generally that each of the 2nd – 6th grounds should be struck out because it draws the Court into commercial decision-making by NAL. The Court cannot intervene because commercial decisions are not susceptible of assessment in terms of legality; the Court has no legal yardstick by which to resolve the issue. To the extent NAL's charges decision involves policy considerations, the Court is in no position to contribute. [51] Dealing specifically with the last three grounds for review, Mr Jagose asked: How on Earth can the Court adjudicate on these complaints? Take, for example this particular of unreasonableness in the 4th ground:(c) NAL included, as part of the capital expenditure upon which charges were calculated, $1.2 million for the acquisition of houses within the airport noise zone, despite Air New Zealand's having offered to underwrite the house purchases as and when they occurred, which offer was unreasonably rejected by NAL.[52] On what basis can the Court say that a reasonable airport company would have accepted Air NZ's offer to underwrite the purchase of the houses in the airport's noise zone? [53] In relation to the 6 th ground, Mr Jagose submitted that it seeks to establish a template for the fixing of user charges, getting right down (in paragraph 18(c)) to the Commerce Commission's pricing principles. Mr Jagose objected that this descends into the minutiae of commercial price-fixing, and invites the Court to second-guess this activity.[54] Mr Jagose relied on Schelde Marinebouw BV v Attorney-General [2005] NZAR 356 at [27] – [32]; Milroy v Attorney-General [2005] NZAR 562 (CA) at [16]; and Air New Zealand Ltd v Auckland International Airport Ltd (2001) 16 PRNZ 783 at [54]. The flavour of these cases is best captured in the passage in the judgment of Eichelbaum CJ in Southern Community Laboratories Ltd v Healthcare Otago Ltd (HC Dunedin, CP 30/96, 19 December 1996), cited by Gendall J inSchelde Marinebouw. I set out the full paragraph of Gendall J's judgment to give the context:[29] I respectfully concur with the remarks of Eichelbaum CJ in Southern Community Laboratories Ltd v Healthcare Otago Ltd (HC, Dunedin CP 30/96, 19 December 1996, Eichelbaum CJ), which concerned a decision of a Crown Health Enterprise declining to accept a proposal in respect of pathology services. The claim was that the decision was in breach of statutory obligations and an unlawful exercise of the defendant's powers. The Chief Justice said at pp 16-17: virtually every administrative decision made by or on behalf of a CHE must have at least the potential to impact directly or indirectly on the quality of health care services. That alone cannot be sufficient to attract the availability of public law remedies It would be easy enough to say that such a conclusion should await a full hearing It cannot be said, that the importance or significance of the decision took it out of the realm of the purely commercial, and into that of a reviewable quasi Governmental administrative decision it relates to the CHE's trading function The decision is and remains, essentially, a commercial one. Lord Templeman's dictum is directly in point The more I study the statement of claim the clearer it has become that it is an attempt to incorporate administrative law concepts into a commercial decision-making process. Its theme is a contention that the process used by the first defendant were flawed and led to a particular choice of supplier when another would have been better. I conclude that the issues raised are not justiciable and that the statement of claim should be struck out.(Mr Jagose's emphasis)[55] While I agree with Mr Jagose that the 2nd and 3rd grounds could have been folded into the 1st ground, I accept they are stand-alone grounds for review. Air NZ considers each has a different focus, and is entitled to plead them separately. [56] I do not accept prejudice or embarrassment results to NAL sufficient to justify striking these two grounds out. If I did strike them out, it would anyway beon the basis that NAL could re-plead its 1 st ground, to incorporate its 2 nd and 3rdgrounds. [57] Accordingly, I hold against NAL's separate challenge to the 2 nd and 3rdgrounds as being pointlessly superfluous. [58] For seven reasons, I also hold against NAL's application to strike out the 2 ndto 6th grounds for review on the basis that they impermissibly draw the Court into NAL's commercial decision-making. [59] First, there is force in Mr Gedye's general contention that NAL's submissions on this aspect face the difficulty that in a normal commercial setting there is neither a statutory power unilaterally to impose charges, nor a statutory provision providing that users are liable to pay those charges. [60] Second, it is unnecessary to say anything more about the 2 nd and 3rd grounds. They are directed to the consultation process rather than to NAL's charging decision. [61] Third, I accept that the 4 th and 5th grounds differ significantly from the second cause of action I struck out in my 24 April 2008 judgment in Air NZ v WIAL, on the basis that it involved an allegation of monopoly pricing. These two grounds challenge NAL's charging decision as unreasonable and substantively unfair because of: a) NAL's refusal to optimise runway width; and b) NAL's inclusion of the $1.2 million capex for acquisition of houses in the airport's noise zone. [62] As Mr Gedye submitted, those are two discrete matters. I accept they are amenable to review. [63] Fourth, the same applies to the 6th ground, in that it alleges NAL did not take into account three allegedly relevant considerations:a) All potential sources of revenue; b) The costs required to be covered; and c) The Commerce Commission's pricing principles for monopoly businesses. [64] The issues on the 6 th ground will be: a) Is each of these three considerations relevant?; and b) If yes, did NAL ascertain it and take it into account in its charges decision? [65] If these are relevant considerations, and if NAL did take them into account, then that will be the end of review. The Court will not be drawn into NAL's treatment of these considerations in its charging decision. That would be to draw the Court impermissibly into NAL's commercial decision-making. [66] Fifth, Mr Gedye is entitled to make the point that the 4th to 6th grounds, at least, shade into each other. If the reviewing Court quashes NAL's charging decision, the exact ground(s) on which it does so may be less important than the decision/finding that the charges decision cannot stand. That was the point made by the Court of Appeal in Air Nelson Limited v Minister of Transport & Hawke's Bay Airport Authority at [55]. [67] Sixth, the cases in which the Court has declined to review, on the grounds that it was being invited to second-guess a commercial decision, are factually distinguishable. In Mercury Energy Ltd v ECNZ [1994] 2 NZLR 385 (PC), Mercury had attempted to challenge the termination, upon 12 months' written notice, of an interim agreement for the supply of bulk electricity by ECNZ to Mercury. Schelde Marinebouw involved an attempt by an unsuccessful tenderer to challenge the tender process conducted by the Ministry of Defence for the supply of several naval vessels.Southern Community Laboratories v Healthcare Otago concerned a challenge to Healthcare's decision not to accept a proposal for the supply of pathology services.In none of those cases was the decision-maker exercising a power comparable to that in s 4A(1). [68] Seventh, while I accept NAL's charges decision was low on policy content, I acknowledge that it did have the "public nature" appropriate to review. Mr Gedye set out the reasons for this in these terms:(a) Nelson Airport Ltd, although a private company, is owned 50/50 by the Nelson City and Tasman District Councils and is thus a public entity (in the same way Hawke's Bay Airport in the Air Nelson case was owned partly by Councils and partly by the Crown.) (sic) (b) Nelson Airport is a vital part of the transport infrastructure for Nelson and the surrounding region. With more than 70 air transport movements a day, there is a high public interest in this transport facility. (c) User charges imposed on airlines by statute have a direct relationship to the fares charged to the public by airlines. The decision thus impacts on the cost to the public of flying in and out of Nelson. There is potentially significant impact on the community (compared to, say, a minor supply contract). (e) The obligation to consult was seen by the Court of Appeal in that case [WIAL v Air New Zealand] as protection to both the airlines and to the public: p 676/5. (f) The subject matter is conceptually similar to cases dealing with telecommunications, power, health, transport, cases which the Court has accepted as involving public law issues.[69] Beyond complaining to the Commerce Commission, I accept also that Air NZ has no private law remedy.Result[70] As NAL's application to strike out the 2 nd to 6th grounds for review has failed in all respects, I dismiss it.Costs[71] NAL is to pay Air NZ's costs of the application on the agreed 2B basis, together with disbursements and reasonable travelling and accommodation expenses to be fixed by the Registrar failing agreement.Timetabling[72] Because Air NZ is not paying the increased part of NAL's charges, this proceeding is entitled to some urgency. [73] Counsel are to confer and attempt to agree a timetable for the completion of remaining interlocutory steps required, for the filing and service of any further affidavits, and as to the likely hearing time required. They are then to revert to me by joint memorandum, by 11 July latest. Counsel for NAL are to take primary responsibility for this. [74] Once I have that memorandum I will, if necessary, arrange a telephone conference with counsel to give timetabling directions and, hopefully, to make a fixture for trial of this proceeding.Solicitors: James Radcliffe, Air New Zealand, Auckland for Plaintiff Chapman Tripp, Wellington for Defendant