NZME LTD v COMMERCE COMMISSION [2017] NZHC 1788

NZME LTD v COMMERCE COMMISSION [2017] NZHC 1788

The Court granted confidentiality orders consistent with the broader scope previously applied by the Commission, maintaining confidentiality of the Contention and dismissing the Commission's proposal to de‑designate it; it granted leave to adduce limited further quantitative updating evidence subject to strict...

Source-derived case information.

Citation
[2017] NZHC 1788
Parties
First Appellant: NZME Limited; Second Appellant: Fairfax Media Limited; Third Appellant: Fairfax New Zealand Limited; Respondent: Commerce Commission
Court
High Court
Jurisdiction
New Zealand
Judgment Date
31 July 2017
Procedural Posture
Appeal Against Commerce Commission Determination (merger Review) / Interlocutory Case Management and Pre Hearing Directions Including Confidentiality and Leave to Adduce Further Evidence
Outcome
Confidentiality order made largely in terms previously applied by the Commission; Commission's request to de‑designate the Contention dismissed; leave granted to adduce limited quantitative updating evidence with strict confidentiality and timing conditions; qualitative anecdotal evidence excluded; amended timetable...
Legal Topics
Merger Review, Confidentiality Orders, Leave to Adduce Further Evidence, Case Timetable/directions, Open Justice
Competition Law Administrative Law Civil Procedure Evidence Commercial Law Merger Review Confidentiality Orders Leave to Adduce Further Evidence +2 more

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Parties

NZME Limited

First Appellant

Fairfax Media Limited

Second Appellant

Fairfax New Zealand Limited

Third Appellant

Commerce Commission

Respondent

Procedural Posture

Appeal Against Commerce Commission Determination (merger Review) / Interlocutory Case Management and Pre Hearing Directions Including Confidentiality and Leave to Adduce Further Evidence

Legal Issues

  1. 1 Scope of confidentiality orders balancing open justice and commercial confidentiality
  2. 2 Whether appellants should have leave to adduce further (updating) evidence under r 20.16 High Court Rules 2016
  3. 3 Appropriate limits and timing for production of draft and final financial statements as updating evidence

Ratio Decidendi

The Court granted confidentiality orders consistent with the broader scope previously applied by the Commission, maintaining confidentiality of the Contention and dismissing the Commission's proposal to de‑designate it; it granted leave to adduce limited further quantitative updating evidence subject to strict conditions (draft financials confidentially supplied to counsel and experts by 4 August 2017, final statements by 25 August 2017 only if drafts supplied, prohibition on qualitative anecdotal material), and set amended timetabling for filing and replies, concluding the balance favored protecting commercial confidentiality while permitting narrowly confined updating evidence.

Court Disposition

Confidentiality order made largely in terms previously applied by the Commission; Commission's request to de‑designate the Contention dismissed; leave granted to adduce limited quantitative updating evidence with strict confidentiality and timing conditions; qualitative anecdotal evidence excluded; amended timetable...

Orders

  • General confidentiality order granted in the terms of the Commission's 19 July 2017 application except that the Contention remains designated confidential and the Commission's proposal in paragraph 1(b)(i) to de‑designate it is dismissed
  • Submissions not to be searchable and to be retained as confidential by counsel and solicitors for the appellants; appellants to redact references to the Contention when instructing the co‑appellant