THE COMMERCE COMMISSION V AIR NEW ZEALAND LTD & ORS HC AK CIV 2008-404-008352

THE COMMERCE COMMISSION V AIR NEW ZEALAND LTD & ORS HC AK CIV 2008-404-008352

s100 orders authorise prohibition only of disclosure of information furnished to or obtained by the Commission (not information merely communicated by the Commission); s100 applies to any information given to the Commission in an investigation (not limited to commercial information); an investigation is to be regarded as concluded for s100(2)(b) purposes when the Commission has achieved the object of its investigatory function (here, by issuing court proceedings), and therefore s100 orders cannot be continued after proceedings issuing in this case; continuation of the orders was unreasonable, an abuse of process and breached NZBORA s27(3); accordingly the s100 orders still in effect...

Citation
openlaw-19594432_aaac_4a07_b230_b6b6316c90f1.pdf
Parties
Plaintiff/defendant: Commerce Commission; Defendant/plaintiff: Air New Zealand Limited & Ors; Defendants: Executives (current and former Air New Zealand employees); Intervenor/third Party: Deutsche Lufthansa AG; Intervenor/third Party: Qantas Airways Limited; Intervenor/third Party: Cargolux Airlines International SA
Court
High Court
Jurisdiction
New Zealand
Judgment Date
21 October 2009
Procedural Posture
Judicial Review and Civil Enforcement Proceedings Under the Commerce Act 1986 / Judgment (reserved Judgment Delivered)
Outcome
Judgment for Air New Zealand and the executives; judicial review allowed; s100 orders quashed in relation to Air New Zealand's present and former employees and the named executives
Legal Topics
Section 100 Orders, Investigative Powers, Confidentiality and Disclosure, Abuse of Process, NZBORA S27 Right to Defend
Competition Law Administrative Law Constitutional Law Civil Procedure Section 100 Orders Investigative Powers Confidentiality and Disclosure Abuse of Process +1 more

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Parties

Commerce Commission

Plaintiff/defendant

Air New Zealand Limited & Ors

Defendant/plaintiff

Executives (current and former Air New Zealand employees)

Defendants

Deutsche Lufthansa AG

Intervenor/third Party

Qantas Airways Limited

Intervenor/third Party

Cargolux Airlines International SA

Intervenor/third Party

Procedural Posture

Judicial Review and Civil Enforcement Proceedings Under the Commerce Act 1986 / Judgment (reserved Judgment Delivered)

Legal Issues

  1. 1 Scope of s100 Commerce Act 1986 orders: what information and to whom may disclosure be prohibited?
  2. 2 Duration and termination of s100 orders: meaning of 'conclusion of the investigation' under s100(2)(b)
  3. 3 Whether continuation of s100 orders after court proceedings are issued is ultra vires, unreasonable or an abuse of process

Ratio Decidendi

s100 orders authorise prohibition only of disclosure of information furnished to or obtained by the Commission (not information merely communicated by the Commission); s100 applies to any information given to the Commission in an investigation (not limited to commercial information); an investigation is to be regarded as concluded for s100(2)(b) purposes when the Commission has achieved the object of its investigatory function (here, by issuing court proceedings), and therefore s100 orders cannot be continued after proceedings issuing in this case; continuation of the orders was unreasonable, an abuse of process and breached NZBORA s27(3); accordingly the s100 orders still in effect...

Court Disposition

Judgment for Air New Zealand and the executives; judicial review allowed; s100 orders quashed in relation to Air New Zealand's present and former employees and the named executives

Orders

  • Quash s100 orders remaining in effect against Air New Zealand's present and former employees (including the executives); orders in terms of paragraphs 19(a)-(b), 25(a) and 37(a) of the applicants' amended statement of claim dated 27 April 2009
  • No order made on paragraph 37(b) and stay application dismissed as unnecessary