AIR NEW ZEALAND LTD AND ORS V AUCKLAND INTERNATIONAL AIRPORT LTD HC AK CIV 2007-404-004562

AIR NEW ZEALAND LTD AND ORS V AUCKLAND INTERNATIONAL AIRPORT LTD HC AK CIV 2007-404-004562 10 July 2008IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2007-404-004562UNDER the Judicature Amendment Act 1972 IN THE MATTER OF an application for Judicial Review BETWEEN AIR NEW ZEALAND LIMITED First Plaintiff AND AIR NELSON LIMITED Second Plaintiff AND EAGLE AIRWAYS LIMITED Third Plaintiff AND FREEDOM AIR LIMITED Fourth Plaintiff AND MT COOK AIRLINE LIMITED Fifth Plaintiff AND AUCKLAND INTERNATIONAL AIRPORT LIMITED Defendant Hearing: 9 July 2008 (on the papers) Counsel: DJ Cooper for plaintiffs JD Palmer and SS Cook for defendant Judgment: 10 July 2008 at 1130JUDGMENT OF ASSOCIATE FAIRE [on application for orders striking out second and third causes and that the application be transferred to the Court of Appeal]Solicitors: Bell Gully, PO Box 4199, Auckland for plaintiffs Russell McVeagh, PO Box 10 214, Wellington for defendant[1] The defendant applies to strike out the plaintiffs' second and third causes of action (Court document 9). The plaintiffs' oppose this application. [2] The defendant also applies for an order that its strike out application be transferred to the Court of Appeal for hearing. This application is not opposed. Counsel confirm that they wish me to deal with the application for transfer on the papers. I so do. [3] The Court's jurisdiction to transfer to the Court of Appeal is conferred by s 64 of the Judicature Act 1908. My jurisdiction to deal with this application arises from the fact that it is an interlocutory application, heard in chambers and is therefore within s 26J of the Judicature Act 1908 and r 61A of the High Court Rules. [4] Section 64 of the Judicature Act 1908 provides:64 Transfer of civil proceedings from High Court to Court of Appeal(1) If the circumstances of a civil proceeding pending before the High Court are exceptional, the High Court may order that the proceeding be transferred to the Court of Appeal. (2) Without limiting the generality of subsection (1), the circumstances of a proceeding may be exceptional if— (a) A party to the proceeding intends to submit that a relevant decision of the Court of Appeal should be overruled by the Court of Appeal: (b) The proceeding raises 1 or more issues of considerable public importance that need to be determined urgently, and those issues are unlikely to be determined urgently if the proceeding is heard and determined by both the High Court and the Court of Appeal: (c) The proceeding does not raise any question of fact or any significant question of fact, but does raise 1 or more questions of law that are the subject of conflicting decisions of the High Court. (3) In deciding whether to transfer a proceeding under subsection (1), a Judge must have regard to the following matters: (a) The primary purpose of the Court of Appeal as an appellate court:(b) The desirability of obtaining a determination at first instance and a review of that determination on appeal: (c) Whether a Full Court of the High Court could effectively determine the question in issue: (d) Whether the proceeding raises any question of fact or any significant question of fact: (e) Whether the parties have agreed to the transfer of the proceeding to the Court of Appeal: (f) Any other matter that the Judge considers that he or she should have regard to in the public interest. (4) The fact that the parties to a proceeding agree to the transfer of the proceeding to the Court of Appeal is not in itself a sufficient ground for an order transferring the proceeding. (5) If the High Court transfers a proceeding under subsection (1), the Court of Appeal has the jurisdiction of the High Court to hear and determine the proceeding.[5] The plaintiffs' second cause of action pleads that on 2 July 2007 the defendant, acting pursuant to s 4A of the Airport Authorities Act 1966 set the landing charges payable by the airlines which use Auckland Airport, including the plaintiffs. It is further pleaded that the defendant acted beyond the scope of its power by setting new charges that seek a monopoly return and are unreasonable. [6] The plaintiffs seek a declaration that the charges announced by the defendant for the use of the Airport and associated services are invalid and of no effect and are accordingly not due and payable. [7] In their third cause of action the plaintiffs plead a series of step increases, the first of which took effect on 1 July 2008. It pleads that the proposed increases will breach s 4B of the Airport Authorities Act 1966 and will be invalid unless consultation occurs before the increases are implemented. The plaintiffs seek a declaration that the charges announced for the use of the Airport and associated services, in so far as they relate to further increases, to take effect on 1 July 2008 are invalid and of no effect. The defendant alleges that it acted within the scope of its authority with the result that the second and third causes of action are clearly untenable and cannot possibly succeed.[8] Similar proceedings have been issued in the Wellington High Court and are the subject of a judgment of Wild J delivered on 24 April 2008 (Air New Zealand & Ors v Wellington International Limited WTN HC CIV 2007-485-001756 and CIV 2007-485-002221). [9] Air New Zealand has appealed the Wellington judgment. The hearing of the appeal has been set down for hearing in the Court of Appeal on 19 and 20 November 2008. [10] The current strike out application is advanced by the defendant on the basis that the second and third causes of action disclose no reasonable cause of action. [11] The following specific matters are relevant to the determination of the application for transfer: a) The jurisdiction conferred by the section applies to the whole proceeding or any part of it: Vector Ltd v Transpower NZ Ltd (2000) 14 PRNZ 240, Lai v Chamberlains (2002) 16 PRNZ 628. An application to transfer a strike out application is therefore within the jurisdiction that can be exercised under s 64; b) The jurisdiction to transfer a proceeding to the Court of Appeal requires a finding that the circumstances of the civil proceeding are exceptional. Counsel, in a supporting memorandum, lists the following matters as justifying such a finding:(a) it would be a waste of the Court's (and the parties') resources for the Court to hear the strike out application as: (i) the Wellington judgment has determined identical legal issues to those raised by the strike out application; (ii) the Wellington judgment has been appealed to the Court of Appeal; (iii) if the Court were to grant the strike out application (which is likely based on the Wellington judgment), it is likely that Air NZ would appeal that judgment to the Court of Appeal;(iv) the Court of Appeal is to hear the Wellington appeal on 19/20 November 2008; and (v) the decision of the Wellington appeal will have a direct bearing on Auckland Airport's interests. (b) The strike out application raises questions of considerable public importance as it concerns the scope of the statutory power of airport companies to set landing charges under the Airport Authorities Act 1966; (c) The Court of Appeal will have the benefit of the Wellington judgment; (d) Air NZ has advised that it will not oppose the removal application; and (e) It is in the interests of justice that the strike out application be heard by the Court of Appeal together with the Wellington appeal.[12] The matters referred to in the previous paragraph, in my view, justify the making of an order pursuant to s 64.Orders[13] I order that: a) the defendant's strike out application (Court document 9) be transferred to the Court of Appeal for hearing with the appeal in Air NZ & Ors v Wellington International Airport Ltd WTN HC CIV 2007-485-001756 and CIV 2007-485-002221; b) costs in respect of this application are reserved; and c) the case management conference scheduled for this proceeding at 9am on 13 August 2008 is vacated and attendances are excused. _____________________ JA Faire Associate Judge