High Court judge considers Air NZ suppression case
Air New Zealand must now play a waiting game while a High Court judge considers arguments made in its case to remove suppression orders placed on staff by the Commerce Commission – a decision that could dictate how the commission runs future investigations.
Counsel for the two parties spent two days in the High Court at Auckland this week arguing the case. Justice Pamela Andrews retired yesterday afternoon to consider her decision.
The airline is fighting for the removal of section 100 orders (suppression orders issued under section 100 of the Commerce Act) placed on five current and former employees by the commission during its investigation into Air New Zealand’s alleged involvement in a global cargo cartel.
The orders prohibit the employees from discussing the contents of the interviews conducted by the commission as part of the investigation.
Lawyer for Air New Zealand Alan Galbraith, QC, claimed on Wednesday the airline could not defend itself against the collusion claim without being able to speak to its staff about the interviews.
He claimed the commission had become “addicted” to issuing section 100 orders in recent years, and that it was using its power for tactical advantage.
Counsel for the commission Francis Cooke, QC, yesterday said it was the commission’s right to impose the orders.
He said Air New Zealand could still talk to staff about documents discussed in the commission’s interviews, but only if it came to discuss them of its own accord, and not if it knew the discussion was occurring because of what happened in any given interview.
The commission began investigating the alleged cartel in 2005 and pressed charges against 13 airlines and seven staff members in December.
It alleges the airlines colluded to raise the price of freighting cargo by imposing fuel surcharges for more than seven years, affecting the price of cargo both into and out of New Zealand.
The airlines allegedly involved are: Air New Zealand, British Airways, Cargolux International Airlines, Cathay Pacific Airways, Emirates, PT Garuda Indonesia, Japan Airlines International, Korean Airlines, Malaysian Airline System Berhad, Qantas, Singapore Airlines Cargo, Singapore Airlines, Thai Airways International Public Company and Unite Airlines.
Aerolineas Argentina pleaded guilty last year to failing to supply information requested by the commission under section 98 of the Commerce Act. It was fined $11,000 in the Auckland District Court.
The commission claimed up to 60 airlines were involved in the cartel, but prosecuted only those whose involvement had the greatest impact on New Zealand.
NB: This story has been edited to clarify the reference to Aerolineas Argentina.