HARMONEY LIMITED v COMMERCE COMMISSION [2019] NZCA 355

HARMONEY LIMITED v COMMERCE COMMISSION [2019] NZCA 355 [7 August 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA322/2018[2019] NZCA 355BETWEEN HARMONEY LIMITEDAppellantAND COMMERCE COMMISSIONRespondentHearing: 26 March 2019Court: French, Miller and Williams JJCounsel: A R Galbraith QC, A M Callinan and S A Comber for AppellantS J Mills QC and J D Cairney for RespondentJudgment: 7 August 2019 at 11.30 amJUDGMENT OF THE COURTA The application for strike-out is dismissed.B The respondent must pay costs to the appellant for a standard appeal ona Band A basis with usual disbursements. We certify for second counsel.____________________________________________________________________REASONS OF THE COURT(Given by Miller J)[1] This judgment answers a preliminary question in an appeal brought byHarmoney Ltd.1 The question is whether we have jurisdiction to entertain the appeal.1 The preliminary hearing was ordered in a minute issued on 10 July 2018.[2] The decision appealed from was an opinion of the High Court on a case statedunder s 100A of the Commerce Act 1986, which provides:100A Commission may state case for opinion of High Court(1) The Commission may at any time state a case for the opinion ofthe court on any question of law arising in any matter before it.(2) The court may order the removal into the Court of Appeal of any casestated for the opinion of the court under this section.(3) The court or the Court of Appeal, as the case may be, shall hear anddetermine the question, and shall remit the case with its opinion tothe Commission.[3] The Commerce Commission says that no right of appeal lies fromthe High Court's opinion, either under the Commerce Act or under this Court's generalappellate jurisdiction. Harmoney responds that an appeal lies in this case, because itwas a party below and the decision appealed from had a practical effect on its rightssufficient to sustain a right of appeal.Narrative[4] Harmoney is a peer-to-peer lender which matches borrowers with investors ona web-based platform. It is licensed by the Financial Markets Authority underthe Financial Markets Conduct Act 2013.[5] Harmoney charges borrowers a "platform fee". It says the fee is for a serviceakin to brokerage. The Commission says the fee is an "establishment fee" as definedunder the Credit Contracts and Consumer Finance Act 2003 (CCCFA).2If the Commission is correct the fee must be set at a level that is reasonable, gaugedby reference to the costs incurred in establishing and administering the loan.3 It isplausible that a fee set as a percentage of the loan, as Harmoney's is, may sometimesexceed these costs.2 Section 5. An establishment fee is a "credit fee" for purposes of s 41 of the Act, which prohibitsunreasonable credit or default fees.3 Sportzone Motorcycles Ltd (in liq) v Commerce Commission [2016] NZSC 53, [2016] 1 NZLR1024 at [113]−[115].[6] The Commission has issued two proceedings. The first in time is the casestated brought under s 100A, which as noted allows the Commission to state a casefor the opinion of the High Court on any question of law arising in any matter beforethe Commission.4 It says that it used the case stated procedure to ascertain the extentto which the CCCFA applies to peer-to-peer lending.[7] The Commission appears to have chosen Harmoney, the largest peer-to-peerlender, as an exemplar. It used Harmoney's documents and practices to frame the casestated. We were told that the Commission joined Harmoney to "assist the Courtthrough the presentation of a contrary view" and that Harmoney consented to this.5All of the decisions below are intituled as judgments naming Harmoney asthe defendant or respondent.[8] Harmoney's consent to joinder was evidently given not because it saw the casestated as an expedient way to resolve the legal issues once and for all but because itwanted to put a stop to the proceeding. The case stated has produced three judgmentsin the High Court. The first two dismissed Harmoney's successive interlocutoryapplications to strike it out.6 The third was a substantive answer, given by CourtneyJ, to questions of law posed by the Commission.7 The last of these judgments isformally the subject of this appeal, though as will be seen the argument covers someof the same ground as the strike-out judgments.[9] The second proceeding is a civil enforcement action brought against Harmoneyin the High Court under the CCCFA.8 The Commission pleads that the platform feeis excessive and seeks a declaration that the fee contravenes the CCCFA. It also seeksorders that the fee be reduced to a reasonable level or affected borrowers compensatedto the extent that they have overpaid. That proceeding is still pending inthe High Court. Whether it will be prosecuted depends on the result of the case statedappeal.4 CIV-2016-404-2125.5 Memorandum of counsel for the Commission dated 29 June 2018.6 Commerce Commission v Harmoney Ltd [2017] NZHC 1167, (2017) 23 PRNZ 644 [Courtney Jstrike-out]; and Commerce Commission v Harmoney Ltd [2017] NZHC 2421 [Venning Jstrike-out].7 Commerce Commission v Harmoney Ltd [2018] NZHC 1107, [2019] 2 NZLR 81 [HC opinion].8 CIV-2017-404-1970.The first strike-out judgment[10] Harmoney sought to strike out the case stated proceeding on the ground that itfell outside the scope of s 100A.9 The Commission resisted, saying among other thingsthat only in the exercise of inherent jurisdiction could the High Court strikethe proceeding out.[11] Harmoney's application succeeded in part. The Commission had posed fivequestions. Two were struck out because they were held to raise questions of fact: theywere whether there was a transaction that was in substance or effect a credit contract,and whether the Harmoney platform fee was an establishment fee for purposes ofthe CCCFA. Courtney J otherwise declined the application.10 She invited submissionsas to costs while indicating that they might lie where they fell since both sides hadenjoyed some success. It does not appear that either side applied.The second strike-out judgment[12] Harmoney moved again to strike out the case stated, this time as an abuse ofprocess. It did so because the Commission had filed the enforcement proceedingwhich Harmoney argued would determine all the relevant issues anyway.11The strike-out application was dismissed by Venning J in a judgment delivered on3 October 2017.12[13] Overlap between the two proceedings explains Venning J's refusal to strikethe case stated out for prejudice or delay.13 He reasoned that the answers tothe questions in the case stated would largely dispose of the enforcement proceeding,which raised the same issues, and the hearing of the case stated was imminent. (It wasargued on 25 October 2017.) His was a practical analysis resting on the assumptionthat the case stated questions would not be relitigated in the enforcement proceeding.He did not hold that the parties would be estopped if they tried to do so. So far asabuse of process was concerned, he observed that the Commission had brought9 Courtney J strike-out, above n 6.10 At [67].11 It was filed on 25 August 2017.12 Venning J strike-out, above n 6.13 High Court Rules 2016, r 15.1(1)(b).the enforcement proceeding for a proper reason — to stop time running — and wascontent to stay it until the case stated had been answered. Venning J awarded costs tothe Commission.The answers to the case stated[14] In the third decision, which was delivered on 18 May 2018 and like the othersintituled as a judgment inter partes, Courtney J answered the three questions of lawthat had survived her first strike-out judgment. The questions and her answers were:14(a) Question 1: Is the "credit contract" as defined in s 7 of the CCCFA,comprised of a number of the Documents operating together or justthe Loan Contract?Answer: The credit contract comprises the Loan Contract and LoanDisclosure.(b) Question 2: On the basis of the Documents and the factual summary,which entity or entities are the "creditor(s)" for the purposes ofthe CCCFA, as defined in s 5 of the CCCFA?Answer: the investors, Harmoney and [Harmoney Investor TrusteeLtd] are all creditors for the purposes of s 5 of the CCCFA.(c) Question 3: On the basis of the Documents and the factual summary,is the Harmoney Platform Fee a "credit fee" as defined in s 5 ofthe CCCFA?Answer: Yes.The answers were all adverse to Harmoney. Its case depended on the credit contractcomprising just the standard loan contract, to which Harmoney itself is not a party.[15] The Judge invited submissions on costs. It appears the parties agreed to letcosts lie where they fell.What remains of the enforcement proceeding?[16] The Commission has advised that, with benefit of Courtney J's decision, it nowintends to pursue the enforcement proceeding against Harmoney.15 Until herappointment to this Court, Courtney J was assigned to try that proceeding.14 HC opinion, above n 7, at [94].15 Memorandum of counsel for the Commission dated 9 July 2018.[17] The Commission's stance is that all issues remain at large in the enforcementproceeding; put another way, the answers given to the case stated guidethe Commission but do not bind the parties, by issue estoppel or otherwise.[18] We observe that the answers were given on facts that were accepted as correct.Transactions are effected through Harmoney's website and are fully documented, andthe agreed facts are largely descriptive of the documents and what happens asindividuals navigate the website.16 We cannot exclude the possibility that differentfacts might be found at trial, and if so those facts presumably might bear on thequestion whether the platform fee is correctly characterised as a credit fee.But Venning J plainly did not think that likely and counsel gave us no reason tosuppose that it would be.[19] However, the case stated proceeding did not address the reasonableness ofthe fee. A declaration that it is unreasonable is the first form of relief sought inthe enforcement proceeding. Nor did it settle the remaining relief sought: what feeought to be charged and what compensation (if any) ought to be paid to affectedborrowers.The appeal and the preliminary hearing[20] The notice of appeal challenges Courtney J's decision of 18 May 2018 on anumber of grounds, all pertaining to the specific questions and answers.Generally, Harmoney says that the Judge misinterpreted the documents.[21] The Commission responded by filing a memorandum in which it invitedthe Court to dismiss the appeal for want of jurisdiction.17 Presumably it did not bringan application because its stance is that the appeal is a nullity and ought not to havebeen accepted for filing. We will treat the memorandum as an application tostrike out.1816 See HC opinion, above n 7, at [6].17 Memorandum of counsel for the Commission dated 29 June 2018.18 Court of Appeal (Civil) Rules 2005, r 5(4).Sources of appellate jurisdiction[22] We have set out s 100A above. It allows the High Court to remove a case statedinto this Court for answer but confers no express appeal right.[23] This Court's general jurisdiction is found in s 66 of the Judicature Act 1908(which applies as the proceeding commenced before the Senior Courts Act 2016 cameinto force):66 Court may hear appeals from judgments and orders of the HighCourtThe Court of Appeal shall have jurisdiction and power to hear anddetermine appeals from any judgment, decree, or order save ashereinafter mentioned, of the High Court, subject to the provisions ofthis Act and to such rules and orders for regulating the terms andconditions on which such appeals shall be allowed as may be madepursuant to this Act.It will be seen that s 66 confers jurisdiction to hear an appeal from a "judgment, decree,or order". We record that the jurisdiction extends to interlocutory decisions inthe absence of an express limitation,19 and it is usually possible to delay an appealagainst an interlocutory decision until the final decision has been delivered.20Determining jurisdiction[24] The question whether an appeal lies from the opinion of a lower court ortribunal has arisen from time to time in a variety of settings. The answer always turnson the context. Generally, the appellate court inquires whether the legislation fromwhich the lower court's jurisdiction to give an opinion is derived confers or excludesa right of appeal. Where empowering legislation does not clearly confer or exclude aright of appeal, attention turns to the nature of the lower court's decision; specifically,whether it is a judgment, decree or order. The overlapping indicia that emerge fromthe cases are:19 Siemer v Heron [2011] NZSC 133, [2012] 1 NZLR 309.20 Paper Reclaim Ltd v Aotearoa International Ltd (No 1) [2006] NZSC 59, [2007] 2 NZLR 1 at[14].(a) whether the decision fully and finally determines a contentious issuebetween parties;21(b) whether the decision affects a party's rights or obligations:(i) in law (in the sense that it is binding or final);22 or(ii) in practical terms;23(c) whether the lower court is answering a case stated on an abstract pointof law divorced from any attempt to administer that law;24 and(d) whether the court's opinion was sought in consultation prior to a finaldecision, or to assess the correctness of that final decision (onlythe latter being appealable).25Does the legislation preclude an appeal from an opinion given under s 100A?[25] We begin with a short overview of the Commission's functions and powers.The Commission's objective is that of enhancing competition in New Zealand marketswith an ultimate aim of protecting consumers.26 Its powers are statutory, stemmingfrom the Commerce Act 1986 and the Fair Trading Act 1986, which operate through21 Re an Arbitration between Knight and the Tabernacle Permanent Building Society [1892] 2 QB613 (CA) at 619 per Bowen LJ; Fidelitas Shipping Co Ltd v V/O Exportchleb [1966] 1 QB630 (CA) at 640 and 644; O'Toole v Charles David Pty Ltd (1991) 171 CLR 232 at 245 perMason CJ; and John G McGregor (Contractors) Ltd v Grampian Regional Council [1991] SLT365 (HL).22 Gao v Body Corporate 183930 [2016] NZCA 458, [2016] NZAR 1313 at [34]; Fisher v Fisher(1986) 161 CLR 438 at 450; and Saffron v The Queen, (1953) 88 CLR 523 at 528;O'Toole v Charles David, above n 21, at 268 per Brennan J. The High Court of Australia inMellifont v Attorney-General (1991) 173 CLR 289 at 304 characterised Swiss Aluminium AustraliaLtd v Federal Commissioner of Taxation (1987) 163 CLR 421 as (incorrectly) holding that theremust be a final determination of rights.23 Commissioner of Stamps v Peat (1912) 32 NZLR 457 (CA) at 470 per Williams J;O'Toole v Charles David, above n 21, at 282–283 per Deane, Gaudron, and McHugh JJ; andMellifont v Attorney-General, above n 22, per Mason CJ, Deane, Dawson, Gaudron, McHugh andToohey JJ. In Swiss Aluminium, above n 22, the Court stated that determination of rights must beresolved in a "practical way": at 426.24 Re The Judiciary Act and Re The Navigation Act (1921) 29 CLR 257 at 266−267.25 Ex parte The County Council of Kent [1891] 1 QB 725 (CA) at 729; Re Knight, above n 21, at618–619 per Bowen LJ; and Fidelitas Shipping, above n 21, at 639.26 Commerce Act 1986, s 1A; Fair Trading Act 1986, s 1A; and Credit Contracts and ConsumerFinance Act 2003 [CCCFA], s 3.other regulatory legislation such as the CCCFA,27 the Dairy Industry RestructuringAct 2001,28 and, formerly, the Electricity Industry Reform Act 1998.29The Commission plays five key roles under these Acts. First, it acts as a 'watchdog'to monitor trade practices and anti-competitive behaviour.30 It can also makerecommendations for the regulation of goods and services to stimulate competition,31as has occurred with utility and airport services, and dairy trade.32 Second, it enforcesobligations under specified Acts through prosecution and civil proceedings.33 Third, itauthorises and gives clearance for restrictive trade practices, mergers, and takeovers,and the variation of price-controlled goods.34 These determinations are quasi-judicialin nature. Fourth, it investigates possible infringements of the Acts.35 Finally, itdisseminates information to promote adherence to those Acts.36[26] Section 111 of the CCCFA sets out the Commission's role and functions underthe Act:111 Role and functions of Commission under this Act(1) The role of the Commission under this Act is to promote compliancewith this Act.(2) The functions of the Commission, in relation to this Act, are to—(a) monitor trade practices in credit markets, consumer leasemarkets, and buy-back transaction markets; and(ab) monitor the conduct of creditors and creditors' agents inthe exercise of their rights under Part 3A and under therelevant credit contract; and(ac) issue infringement notices for infringement offences; and(b) take prosecutions in relation to breaches of this Act; and27 Section 113.28 Sections 145 and 150V.29 Sections 58 and 82.30 Commerce Act, pt 3A; CCCFA, s 111(2)(a); and Telecommunications Act 2001, s 9A(1).31 Commerce Act, pt 4.32 Commerce Act, ss 54−57CA; Telecommunications Act, sch 3; and Dairy Industry RestructuringAct 2001.33 Commerce Act, ss 75−97; Fair Trading Act, ss 40−46M (in conjunction with the FinancialMarkets Authority); and CCCFA, s 111(2)(b) and (c). The Commission could also adjudicateunder the Electricity Industry Reform Act 1998 (now repealed), pt 3. It did not retain this powerunder the replacement Electricity Industry Act 2010.34 Commerce Act, ss 58, 66, and 67.35 Commerce Act, ss 98−100; Fair Trading Act, ss 47−47L; Dairy Industry Restructuring Act, ss 145and 150V; CCCFA, ss 111(1)(ab) and (ac); and Telecommunications Act, ss 16, 25 and 35.36 Commerce Act, s 25; Fair Trading Act, s 6; and CCCFA, s 111(2)(d).(c) take civil proceedings under this Act (including proceedingsunder Part 5); and(d) make available appropriate information for the guidance ofconsumers, creditors, debtors, lessors, transferees, and otherinterested persons in relation to promoting compliance withthis Act.It will be seen that the Commission's role under the CCCFA is that of a regulator andprosecutor. Unlike the Commerce Act, the CCCFA does not confer decision-makingpowers on the Commission.37[27] The CCCFA incorporates various provisions of the Commerce Act, mostly ofan investigative or prosecutorial nature. The incorporated provisions include s 100A.38[28] The CCCFA does not incorporate s 91 of the Commerce Act, which creates aright of appeal to the High Court against any determination of the Commission.39Appeal to this Court lies from judgments of the High Court on appeal fromthe Commission's determinations with leave of this Court.40 There are also limitedrights of appeal in other statutes under which the Commission has decision-makingpowers.41[29] The High Court has jurisdiction to hear appeals against both civil and criminalproceedings brought by the Commission as prosecutor.42 Of relevance, the right ofappeal under the CCCFA, modelled on the Fair Trading Act, is broad and allowsappeals from any proceedings in the District Court brought under the Act.43The High Court is a forum for appeal from District Court decisions, as well as hearing37 Section 111(2).38 Through s 113.39 Subject to the exceptions set out in s 91(1), though these matters can be appealed on a question oflaw: s 91(1B). The appeal right has been described by the High Court as analogous to an appealagainst a specialist tribunal's decision: Fisher & Paykel Ltd v Commerce Commission [1990] 2NZLR 731 (HC) at 757.40 Commerce Act, s 97.41 Dairy Industry Restructuring Act, s 132; and Telecommunications Act, ss 60, 100, 141, 147,155ZK, 156I, 183, 224, 243.42 This depends on the type of proceedings that can be brought under a given Act. Commerce Act,s 75; Fair Trading Act, s 37; CCCFA, s 85; and Dairy Industry Restructuring Act, s 140.43 CCCFA, s 85(a).applications for both orders and injunctions.44 A right of further appeal lies to thisCourt from decisions of that kind under s 66 of the Judicature Act (now s 56 ofthe Senior Courts Act).[30] For the Commission, Mr Mills QC argued that the scheme and purpose ofs 100A strongly suggests that Parliament did not mean to create appeal rights. That isconfirmed by s 100A(2), which provides for removal into this Court. Further, anopinion given under s 100A is advisory only and does not affect anyone's legal rights;that being so, it is not a judgment, decree or order. The Commission is in charge ofthe procedure, deciding whether to initiate it and what to do with the Court's opinion.The scope of s 100A is very wide; it may be employed at any time and in respect ofany matter before the Commission. Counsel submitted that this tells against a right ofappeal. Lastly, the efficacy of the procedure would be much reduced if appeals couldbe brought.[31] We do not accept that the legislation precludes an appeal, for several reasons.First, there is no provision ousting appeal rights. We do not accept that subs (2) and(3) should be taken to do so. A power of removal does not normally preclude a rightof appeal. As in the Senior Courts Act, it may exist for reasons of expediency.45[32] Second, the very wide range of circumstances in which s 100A may beemployed tells against the Commission's argument that an appeal can never lie.The possibility cannot be excluded that the Commission may ask questionsthe answers to which do affect a person's rights or liabilities.[33] We recognise that the jurisdiction is not entirely within the Commission'scontrol. The High Court may refuse to give an opinion on the ground that the questionposed is really one of fact or too dependent on facts yet to be proved, as Dobson J heldin Securities Commission v Contributory Mortgage Investments Ltd:46[9] The terms of s 69O(3) [which was in identical terms to s 100A] appearto be mandatory. However, the Court is not required to determine questions44 CCCFA, ss 85(b) and (c).45 Senior Courts Act 2016, s 59(3).46 Securities Commission v Contributory Mortgage Investments Ltd HC Wellington CIV-2008-485-792, 19 November 2008; in respect of Securities Act 1978, s 69O.of fact wrongly characterised as a question of law. The Court must alwaysremain in control of its own processes, and a contention on behalf ofthe Commission that a question of law has been posed cannot bind the Courtto treat it as such. Nor can the section require the Court to answer a questionwhere factual uncertainty or complexity is likely to render an answerconducive to confusion rather than clarification of the law.[34] By way of illustration, in this case Courtney J declined in her first judgment toanswer two questions posed by the Commission, reasoning that they required that factsbe found before the questions could be answered. One of those questions might bethought dispositive of liability in the enforcement proceeding: it was whetherHarmoney's platform fee was an establishment fee as defined in s 5 of the CCCFA.Harmoney would have had no right of appeal in the proceeding had Courtney Jacceded to its request and answered that question affirmatively.[35] Third, we do not find the term "opinion" dispositive. The question whetherthe Court's answer to the question posed disposes of anyone's rights is one ofsubstance. Put another way, a court's opinion may amount to a judgment, decree ororder. As Lord Halsbury held in ex parte The County Council of Kent, " perhapssomething which may fill the character of a judgment or order, decree or rule, althoughnot known by those names, may be subject to appeal as being practically withinthe words by which a right of appeal is given, although the words themselves be notused".47[36] There are cases in which it has been held that "opinion" signifies thatthe court's role is consultative and its decision does not amount to a judgment ororder.48 Some of these involve arbitral proceedings where an opinion is sought but thearbitrator remains the final judge of law and fact; in such cases the court's opinion isconsultative in nature because the court does not have power to make the award.As Mason CJ explained in O'Toole v Charles David Pty Ltd:49Courts answering questions stated by arbitrators have no jurisdiction to makean award in the arbitration. So it is natural to speak of the answers to suchquestions as being "advisory or consultative only".47 Above n 25, at 728.48 Notably, Re Knight, above n 21, at 617 per Lord Escher MR and 619 per Bowen LJ; John GMcGregor, above n 21, at 367; Fisher v Fisher, above n 22, at 450; Saffron v R, above n 22,at 528; and Fidelitas Shipping, above n 21, at 639 per Lord Denning MR. See also ApolloEngineering Ltd v James Scott Ltd [2013] UKSC 37 at [15].49 Above n 21, at 244 (citations omitted).[37] There are also cases in which an opinion has been held to be dispositive ofrights. Notably, this Court held in Commissioner of Stamps v Peat that the (then)Supreme Court's opinion effectively determined the parties' rights becausethe Commissioner would be duty-bound to follow it.50Not necessary to decide whether an appeal lies in every case[38] For Harmoney, Mr Galbraith QC invited us to follow the Supreme Court'sjudgment in Siemer v Heron and that of the High Court of Australia in Mellifont vAttorney-General.51 In short, he submitted, s 66 confers a wide jurisdiction that oughtnot be read down by reference to historic distinctions between consultative decisionsand decisions that determine rights. An opinion under s 100A is an exercise of judicialpower and as such should be appealable.[39] The question in Siemer v Heron was whether an appeal lay to this Court froman interlocutory decision of the High Court. This Court had drawn distinctions basedon the substantive nature of the decision as opposed to decisions affecting trialmanagement. The Supreme Court held:52The Court [of Appeal] has no doubt been troubled by the broad language("judgment, decree or order") of s 66 and the absence of any rules or orderscontrolling when and how interlocutory appeals may be brought. So it hasendeavoured to provide its own solution by reading down the words of thesection. The Court's attempt to put interlocutory decisions into various classeshas not, however, led to a stable jurisprudence.We consider that the Court should not have embarked on this exercise andshould instead have accepted that s 66 does give an appeal as of right againstinterlocutory decisions of all kinds made in the High Court unlessthe Judicature Act itself or a rule or order made pursuant to the Act creates arestriction. The words "any judgment, decree or order" must be held to meanwhat they say. The statutory language does not support any otherinterpretation.[40] In Mellifont the High Court of Australia held that the opinion of the QueenslandCourt of Criminal Appeal on a point of law referred for its opinion was a judgment,decree or order from which an appeal lay.53 The majority reasoned that answers given50 Above n 23, at 470 per Williams J and at 474 per Edwards J.51 Siemer v Heron, above n 19; and Mellifont v Attorney-General, above n 22.52 At [30]−[31].53 Mellifont v Attorney-General, above n 22.to questions reserved for a court "in the course of proceedings in a matter pending" inthat court are not advisory opinions or abstract declarations:54Such answers are not given in circumstances divorced from an attempt toadminister the law as stated by the answers; they are given as an integral partof the process of determining the rights and obligations of the parties whichare at stake in the proceedings in which the questions are reserved. Once thisis accepted, as indeed it must be, it follows inevitably that the giving of theanswers is an exercise of judicial power because the seeking and the giving ofthe answers constitutes an important and influential, if not decisive, step inthe judicial determination of the rights and liabilities in issue in the litigation.Viewed in this context, it matters not whether the giving of the answers is, asa matter of legal theory, a binding determination, that is, binding on the courtat first instance and the parties or influential, that is, binding in a practicalsense or virtually so [41] We do not find it necessary to decide whether a right of appeal would arise inevery case. The Commission may choose to seek the Court's opinion on questions oflaw arising in a very wide range of matters and circumstances. There need not be arespondent to a case stated, and the opinion given may be abstract in the sense that itdoes not directly engage someone's substantive rights.[42] Mr Mills submitted that the case stated procedure is intended to provide anefficient summary process for obtaining judicial guidance. We agree. We do notaccept his submission that it necessarily follows that there ought not be a right ofappeal. The arbitration cases in which that point is made must be distinguished.For reasons of policy the law generally denies parties who have submitted toarbitration the right to litigate the same issues in a court. In s 100A the legislature hasprovided by contrast that a case stated may be removed into an appellate court foranswer. It is true that an appeal will delay the answer to the case stated.However, the case stated remains a summary and efficient process wherethe alternative is a full trial with associated rights of appeal.Decision in this case affects Harmoney's substantive rights[43] We have concluded that the legislation does not preclude a right of appeal andit is not necessary to decide whether an appeal would lie in every case. We will54 At 303–304.approach the decision in this case by using the traditional tests, which we havesummarised at [24] above.[44] The Commission argues that an answer given under s 100A is a mere opinionwhich does not fully and finally determine any issue between the Commission andHarmoney and does not affect Harmoney's rights and obligations.[45] There is some force in this argument. The Commission is not obliged to seekthe Court's guidance. It has chosen to do so because it was in doubt about its powersor duties under the CCCFA with respect to peer-to-peer lending. It was not compelledto act on the Court's opinion by bringing enforcement proceedings,55 although it maybe doubted whether it could bring such proceedings had the Court advised thatthe legislation did not apply to peer-to-peer lending. The opinion is not formally ananswer to a preliminary question in the enforcement proceeding; the Commission hasbrought separate proceedings.[46] However, we are satisfied that the Commission did not engage the Court in apurely consultative or advisory capacity. In substance, though not in form, it askedthe Court to decide issues of a preliminary or jurisdictional nature in an enforcementproceeding to be brought against Harmoney in the same jurisdiction. The answersgiven manifestly were not divorced from an attempt to administer the law.56 There wasnothing abstract or general about them. On the contrary, they rested on Harmoney'sdocuments and processes. Harmoney was chosen because it is the largest peer-to-peerlender and the case stated was aimed at its practices. Harmoney was also joined as aparty to the case stated, and not by courtesy alone;57 because the questions engaged itsobligations under the CCCFA, the answers could not have been given withoutaffording it an opportunity to be heard. The opinion is intituled as a judgmentinter partes, suggesting on its face that it is susceptible to appeal under s 66.5855 CCCFA, s 111(3).56 Mellifont v Attorney-General, above n 22, at 303.57 Compare Commissioner of Stamps v Peat, above n 23, at 473 per Edwards J in respect of specialisttribunal proceedings.58 Siemer v Heron, above n 19.[47] Courtney J's answers to the questions posed also had a substantive effect onHarmoney's rights. Indeed, in her first judgment the Judge recognised that the answersgiven could very well create an issue estoppel.59 One of the reasons given byVenning J for refusing to strike out the s 100A application was that the answers to twoof the questions posed were likely to be determinative of the same issues inthe enforcement proceeding.60 We observe that in Commerce Commission v OrionMacKenzie J also considered that the opinion he gave would bind the parties.61[48] Mr Mills resisted the conclusion that the opinion would bind Harmoney, sayingthat the Judges below were all in error, because the opinion did not finally determinethe questions.62 The questions can be relitigated at trial. He emphasised thatthe Commission will not contend in the enforcement proceeding that an issue estoppelarises. We make two points about that. The first is that the Commission's concessioncannot be determinative. It is ultimately a question for the Court. The second is thatan issue estoppel may arise where the same questions are relitigated between the sameparties in a subsequent proceeding, which is what will be happening inthe enforcement proceeding.63[49] Ultimately, however, we need not decide whether the judgment was final.It suffices that, as the High Court of Australia put it in Mellifont, the High Court'sopinion was "binding in a practical sense, or virtually so".64 It is almost inconceivablethat the same Judge (recalling that Courtney J was assigned to try the case) woulddecide the questions differently in the enforcement proceeding. We think it veryunlikely that another Judge will do so. In company with Venning J, we see no reasonto suppose that the facts proved at trial will change or will alter the meaning ofHarmoney's standard form documents in some material way. As noted at [18] above,transactions are fully documented via Harmoney's web-based platform. In short, weaccept Mr Galbraith's submission that the answers given were practically dispositiveof the same questions in the enforcement proceeding.59 Courtney J strike-out, above n 6, at [27].60 Venning J strike-out, above n 6, at [26].61 Commerce Commission v Orion [2013] NZHC 1181, (2013) 13 TCLR 610 at [13].62 Joseph Lynch Land Co Ltd v Lynch [1995] 1 NZLR 37 (CA) at 43.63 Fidelitas Shipping, above n 21, at 642 per Diplock LJ citing Thoday v Thoday [1964] P 181 (CA)at 198.64 Above n 22, at 304, from the passage cited at [40] above.[50] Mr Mills also pointed out that eventually Harmoney will get a right of appealif and when judgment is entered against it in the enforcement proceeding. This pointmight assist the Commission were it not the law, as noted at [23] above, that aninterlocutory judgment can be the subject of an appeal under s 66. It may be arguablethat this Court should decline to hear the appeal before the substantive proceeding istried, as the Supreme Court noted in Siemer v Heron, but that is a different point whichdoes not assist the Commission; it rests on the existence of a right of appeal, and theSupreme Court added that where an interlocutory decision is practically dispositive ofthe case this Court should ordinarily hear the appeal before the substantive proceedingis tried.65[51] For these reasons, we are satisfied that the decision of Courtney J is a judgmentfor purposes of s 66 of the Judicature Act and is accordingly susceptible to appeal.Result[52] We have treated the Commission's informal invitation to dismiss the appealfor want of jurisdiction as an interlocutory application to strike the appeal out.The application is dismissed. We conclude that the Court has jurisdiction under s 66of the Judicature Act to entertain the appeal.[53] Harmoney will have costs for a standard appeal on a band A basis with usualdisbursements. We certify for two counsel.Solicitors:Simpson Grierson, Auckland for AppellantMeredith Connell, Auckland for Respondent65 Above n 19, at [33].