Vector Limited v Commerce Commission

[2012] NZSC 74

IN THE SUPREME COURT OF NEW ZEALAND

SC 46/2012
[2012] NZSC 74

BETWEEN  VECTOR LIMITED
Appellant

AND  COMMERCE COMMISSION
Respondent

Court:             Tipping, McGrath and William Young JJ

Counsel:         A R Galbraith QC, A S Butler, J D Every-Palmer and C M Marks for Appellant
B W F Brown QC, V E Casey and K C Millard for Respondent

Judgment:      14 August 2012

JUDGMENT OF THE COURT

ALeave to appeal is granted.

BThe approved grounds are whether under the Commerce Act 1986 the s 54K(3) power:

(i)is able to be exercised in the manner provided for in s 53P(3)(b) in the absence of a published input methodology (or methodologies) specific to starting price adjustment under s 53P(3)(b); and, if so:

(ii)permits change only to the extent necessitated by the newly published input methodology relied on by the Commission.

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REASONS

1. We draw to the attention of counsel our preliminary view that the first question raises three issues:

   (a)Is the Commission required by s 52T(1) to set an input methodology for starting price resets under s 53P(3)(b)?

   (b)Alternatively, is the Commission required by s 52T(2) to set out in each relevant input methodology determined under s 52T(1) how that input methodology is to be applied to starting price resets under s 53P(3)(b)?

   (c)If the answer to one or other of issues (a) and (b) is “yes”, does the absence of a specific input methodology, or specific provision in input methodologies, addressed to s 54P(3)(b), constrain the ability of the Commission to exercise its transitional s 54K(3) power in the manner provided for in s 53P(3)(b)?

2. In their written submissions, counsel for Vector did not provide preferred dates for the hearing of the appeal.[1]  Counsel for the Commission, in response, sought urgency so that the final judgment of this Court can be available before 30 November 2012.  We are conscious of the risk that a grant of leave might have adverse practical effects on the ability of the Commission to implement the regulatory scheme provided for by Part 4 of the Act given the legislatively imposed timing constraints.  For this reason we direct that the appeal is to be heard on 9 and 10 October 2012.  We accept that input methodology appeals will then be underway and that a fixture in this Court that week will pose logistical problems.  But the parties will have to resolve those problems, if necessary by instructing additional or alternative counsel.

   [1]Instead there is a statement that if leave is granted, “counsel will liaise with the Registrar and other parties as to an appropriate date for a fixture”.  This is not in conformity with r 20(4) of the Supreme Court Rules 2004.

Solicitors:
Russell McVeagh, Wellington for Appellant
Crown Law Office, Wellington for Respondent