BLUE REACH SERVICES LIMITED AND BLUE REACH WIRELESS LIMITED v SPARK NEW ZEALAND TRADING LIMITED [2019] NZSC 65

BLUE REACH SERVICES LIMITED AND BLUE REACH WIRELESS LIMITED v SPARK NEW ZEALANDTRADING LIMITED [2019] NZSC 65 [28 June 2019]IN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUISC 24/2019[2019] NZSC 65BETWEEN BLUE REACH SERVICES LIMITED ANDBLUE REACH WIRELESS LIMITEDApplicantsAND SPARK NEW ZEALAND TRADINGLIMITEDRespondentHearing: 21 June 2019Court: O'Regan, Ellen France and Williams JJCounsel: M B Wigley for ApplicantsZ G Kennedy and O J Skilton for RespondentJudgment: 28 June 2019JUDGMENT OF THE COURTA The application for leave to appeal is dismissed.B The applicant must pay the respondent costs of $4,500 plususual disbursements.____________________________________________________________________REASONS[1] The applicants seek leave to appeal against a decision of the Court of Appeal,1upholding a decision of the High Court striking out their claim against the respondent(Spark).21 Blue Reach Services Ltd v Spark New Zealand Trading Ltd [2019] NZCA 2, [2019] NZAR 333(Gilbert, Dobson and Mander JJ) [Blue Reach (CA)]. For ease of reference we will call theapplicants collectively "Blue Reach".2 Blue Reach Services Ltd v Spark New Zealand Trading Ltd [2018] NZHC 847, [2018] NZAR 912(Lang J) [Blue Reach (HC)].[2] The background to Blue Reach's claim is, in brief, as follows. Spark is aprovider of telecommunication services, as is Blue Reach. Spark sought clearancefrom the Commerce Commission to acquire certain radio spectrum rights under s 66of the Commerce Act 1986. Although Blue Reach was made aware of the application,it did not seek to take any part in the Commission's process for considering theapplication. Clearance was granted and Spark acquired the rights.[3] Some time after that acquisition, Blue Reach commenced proceedings againstSpark claiming that Spark had misled the Commission in the information contained inits clearance application in breach of s 9 of the Fair Trading Act 1986 and that thiscaused or contributed to the Commission's decision to grant the clearance. It claimedcompensation for loss it said it suffered because it did not have the spectrum rightsthat Spark had acquired.[4] The claim was struck out in the High Court on the basis that it was precludedby s 106(9) of the Commerce Act, which provides that information, documents andevidence provided to the Commission are privileged "in the same manner as if [theywere provided] in proceedings in a court".3[5] The Court of Appeal considered s 106(9) conferred an immunity on anyonewho provided information, documents or evidence to the Commission in connectionwith the discharge of its statutory functions and this included protection from claimsunder s 9 of the Fair Trading Act.4 It considered that such a claim would have beenprecluded if the allegedly misleading statements made to the Commission had beenmade in court.5[6] Counsel for Blue Reach, Mr Wigley, advanced the application for leave on thebasis that it raised a point of public importance, namely the scope and nature of theprivilege applying in court proceedings. A subsidiary issue is the way in which thematerial provided to the Commission by Spark can be characterised when applyingthe analogy with court proceedings. Mr Wigley essentially argued that there should3 Blue Reach (HC), above n 2, at [32].4 Blue Reach (CA), above n 1, at [29].5 At [30].be an exception to that privilege for information provided by Spark to the Commissionbecause of the duty of candour applicable to Spark in making its application to theCommission.[7] We accept that there may be cases calling for this Court to consider the scope,nature and extent of the privilege applying in court proceedings. But we do not seethe present application as such a case. There is nothing in the facts of the present casethat provides a basis for concern about the application of the settled law on theprivilege applying in court proceedings. If leave were granted, Blue Reach wouldneed to convince the Court that the privilege applying to court proceedings should beabolished or curtailed in order to succeed on appeal. We do not consider such anargument has sufficient prospect of success to justify the grant of leave.[8] As an alternative to the broader argument just mentioned, Blue Reachsubmitted that it should be allowed to argue on appeal that the privilege referred to ins 106(9) did not apply in proceedings under the Fair Trading Act. This argumentstrikes the same difficulties as the broader argument and would also need to confrontan Australian authority to the contrary.6 We do not consider it has sufficient prospectsof success to justify the grant of leave either.[9] Blue Reach also wishes to argue on appeal that the case should have beenallowed to proceed to trial so the interpretation of s 106(9) could occur with fullknowledge of the facts. However, it did not advance any particular factual issues thatwould need to be decided. We do not consider this raises any point of publicimportance: the test for strike out is now well settled7 and we see no appearance of amiscarriage in the way in which this was applied by the Courts below.8[10] We do not consider that the case meets the criteria in s 74 of the Senior CourtsAct 2016 for the grant of leave. We therefore dismiss the application.6 Commonwealth of Australia v Griffiths [2007] NSWCA 370, (2007) 70 NSWLR 268 at [121].7 Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [33] per Elias CJ andAnderson J; Attorney-General v Prince [1998] 1 NZLR 262 (CA) at 267–268; North Shore CityCouncil v Attorney-General [2012] NZSC 49, [2012] 3 NZLR 341 at [146] per Blanchard,McGrath and William Young JJ; and Sandman v McKay [2019] NZSC 41 at [111] and [113] perElias CJ.8 Junior Farms Ltd v Hampton Securities Ltd (in liq) [2006] NZSC 60, [2006] 3 NZLR 522 at [5].[11] Blue Reach must pay to Spark costs of $4,500 and usual disbursements.Solicitors:Wigley and Company, Wellington for ApplicantsMinter Ellison Rudd Watts, Auckland for Respondent